Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Bellamy

Supreme Court of Connecticut

October 25, 2016

STATE OF CONNECTICUT
v.
BRANDON MONTRELL BELLAMY

          Argued December 7, 2015

          James B. Streeto, senior assistant public defender, for the appellant (defendant).

          James M. Ralls, assistant state's attorney, and Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Kevin C. Doyle, former senior assistant state's attorney, for the appellee (state).

          Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js.

          OPINION

          ZARELLA, J.

         The defendant, Brandon Montrell Bellamy, appeals from the judgment of the Appellate Court affirming his conviction, rendered after a jury trial, of two counts of murder in violation of General Statutes § 53a-54a (a), and one count each of assault in the first degree in violation of General Statutes § 53a-59 (a) (5), criminal possession of a pistol in violation of General Statutes § 53a-217c (a), and carrying a pistol without a permit in violation of General Statutes § 29-35. The defendant claims that the Appellate Court incorrectly determined that he waived his unpreserved jury instruction claim under the rule established in State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011).[1] The defendant further contends that the rule in Kitchens should be overturned because it is confusing, unworkable, interferes with the trial court's discretion to review unpreserved claims and does not serve the interests of justice.[2] We conclude, following a careful review of the record, that the Appellate Court correctly determined that the defendant waived his unpreserved jury instruction claim. We also conclude that the rule in Kitchens should not be overturned. Accordingly, we affirm the judgment of the Appellate Court.

         I

         We begin with the defendant's waiver claim. The defendant contends that the trial court's instruction on identification witnesses was deficient because it did not inform the jury that the certainty of a witness' identification does not mean that the identification is accurate, or that factors such as distance, lighting, a witness' emotional state and the time between the crime and the witness identification are also relevant in considering the accuracy of an identification. The state responds that defense counsel indicated that he understood and accepted the trial court's proposed instruction, and, therefore, the defendant's claim is unreviewable under the waiver rule in Kitchens. We agree with the state that the defendant's claim is unreviewable.[3]

         The following facts and procedural history are relevant to our resolution of this claim. On Thursday, November 4, 2010, two days after commencement of the evidentiary portion of the trial, the court gave counsel a draft of the proposed jury instructions. The court also notified counsel that, if they would like to make any additional changes to the instructions, they should inform the court by the following Monday, November 8, although counsel were free to file supplemental instruction requests after that time in light of additional evidence. The court added: ‘‘If there's anything either in the court's language or an additional area that I would call nonstandard that you want included, please let the court know.'' The court also stated that it expected jury deliberations to begin on Tuesday, November 9. The proposed instructions do not appear to have been marked for identification or otherwise made part of the record.

         On Monday, November 8, following conclusion of the evidence, the trial court stated for the record that it was going to meet with counsel in chambers for ‘‘a legal charging conference.'' The court explained: ‘‘[I]t's the actual law the court is going to give tomorrow as it relates to the charges themselves and any kind of law that would apply to this case based on identification witnesses, inconsistent testimony, etc., charges that need to go to the jury in order to complete the record of the case.'' The court added that it would try to incorporate any specific requests by counsel into the proposed charge. The court also indicated that it had given counsel copies of the court's proposed general and specific instructions. A brief recess followed, during which the court consulted with counsel in chambers.

         After the recess, the court described the proceeding to follow as ‘‘our legal session for the charging conference.'' The court first observed that it had given counsel for both sides copies of the proposed general instructions. It then described certain changes unrelated to the identification issue that it intended to make in response to requests by counsel, adding that it also intended to change the instructions to read that it was the state's burden to prove beyond a reasonable doubt that the defendant had committed the charged crimes, to which defense counsel specifically assented. The court next discussed the proposed identification instruction, explaining: ‘‘With respect to identification, I did give an identification section in the charge which outlines on page 14 that the jur[ors] must be satisfied in making the identification, including some of the factors they can consider in this evidence. However, I'm going to expand that language to include . . . language to the effect that, in every criminal prosecution, it is the state's responsibility to show that the defendant is the person who committed the offense, and if they are not satisfied of that evidence, then they cannot find the defendant guilty of any particular offense. I'm going to highlight that because, obviously, that is an issue in this case.'' The court also indicated its willingness to change language in the proposed instructions referring to the possession of a weapon, as suggested by defense counsel. After the court asked if there were any other exceptions, defense counsel responded: ‘‘Not at this time, Your Honor.'' The court replied: ‘‘Okay, I appreciate your coming back up, and, with that, because the charge is now complete, we can go right to the jury . . . . Okay?'' Defense counsel simply responded: ‘‘Thank you, Your Honor.'' The court then adjourned for the day.

         When the proceeding resumed the next morning, the court initially noted that it had conducted an on-the-record charging conference the previous day, during which it had made certain changes to the jury instructions suggested by counsel. The court also clarified that the jury instructions would contain no reference to lesser included offenses, and both counsel agreed that this was appropriate. After the court asked if there was ‘‘[a]nything else'' of concern the parties wanted to discuss before the jury was brought into the courtroom, counsel responded: ‘‘Nothing from [the] defense, Your Honor.'' The jury then returned to the courtroom, and the court delivered its instructions.

         The trial court's jury instructions addressed the issue of identification two different times. The court first addressed the identification issue indirectly when it instructed the jury regarding how to decide whether to believe a witness' testimony.[4] It later addressed the issue directly in its charge on identification.[5] Defense counsel took no exception to either instruction. Defense counsel instead stated that he did not object to the instructions, agreed with the state regarding a clarification relating to the elements in the weapons counts, and asked the court to eliminate the instruction on proof of the felony conviction. The court agreed to the suggested changes and asked if there was anything else defense counsel wanted to discuss, to which counsel replied in the negative.

         The defendant was convicted on all counts. On January 7, 2011, the court held a sentencing hearing. At the hearing, defense counsel initially argued in support of three postverdict motions the defendant had filed to arrest judgment, for judgment of acquittal, and for a new trial. In his argument, counsel stated that all three motions were based principally on the allegedly rapid speed with which the jury instructions had been delivered. Counsel specifically argued: ‘‘[I]t's not the content of the jury instructions. The jury instruction says we went through the charging conference. We conferred. We agreed on them. I didn't take any exceptions. The issue I had, Your Honor, was the speed with [which] the court went through the instructions to the jury.'' Counsel indicated that the speed of the instructions was important because it affected the jurors' ability to follow them. The court denied all three motions, reasoning that ‘‘the jur[ors] did have the benefit of the actual transcript of the court's instructions going in with them in their deliberative process.''

         Thereafter, the defendant appealed from the judgment of conviction.[6] The defendant claimed, among other things, that ‘‘the [jury] instructions on the issue of [the accuracy of an] identification were prejudicially erroneous and deprived him of [his constitutional right to] a fair trial . . . .'' State v. Bellamy, 149 Conn.App. 665, 669, 89 A.3d 927 (2014). The defendant specifically contended that the instructions departed from the standard criminal jury instructions promulgated by the Judicial Branch because they failed to inform the jury that the certainty of a witness' identification does not equate with its accuracy. Id. He also contended that the instructions had failed to list other relevant factors relating to the accuracy of a witness identification, such as distance, lighting, the emotional state of the witness, and the time between the crime and the identification. Id. The defendant, who apparently had filed no request to charge, conceded that this claim was unpreserved and sought review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).[7] State v. Bellamy, supra, 671. The Appellate Court noted, however, that a claim that has been waived at trial fails to satisfy the third prong of Golding.[8] Id., 671-72. The court thus determined that, in order to decide whether the defendant's claim was reviewable under Golding, it was required, under Kitchens, to first consider whether the claim had been waived at trial. Id. Applying the waiver rule in Kitchens, the court ultimately concluded that the claim had been waived. Id., 673-74. The court summarized: ‘‘[D]efense counsel, having been provided with a draft copy of the jury instructions and a meaningful opportunity to review them and to alert the court to any potential issues, declined to object in any way to the portion concerning identification, and affirmatively expressed his satisfaction with the content of the instructions. Under these circumstances, the defendant has waived his claim of instructional error, and, accordingly, it fails under the third prong of Golding.'' Id.; see also footnote 3 of this opinion.

         On appeal to this court, the defendant contends that the Appellate Court incorrectly concluded that he waived his claim of instructional error. We disagree. In Kitchens, we stated: ‘‘[W]hen 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. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.''[9] State v. Kitchens, supra, 299 Conn. 482-83.

         In the present case, all of the foregoing criteria were satisfied. The trial court gave both defense counsel and the state a copy of its proposed jury instructions four days before the charging conference. Two of the four days fell on a weekend, thus providing counsel with even more time to review the instructions. The court also solicited comments from counsel regarding modifications to the instructions during the in-chambers charging conference, during the proceedings in open court directly after the charging conference and on the following day immediately before instructing the jury. In addition, when the court discussed portions of the identification instruction on the record, defense counsel expressed no dissatisfaction with the instruction, although he commented on several other instructions. Counsel thus indicated that he had read and understood the instructions in their entirety and took no issue with any part, including the instruction on identification. Finally, defense counsel explicitly conceded during the sentencing hearing that he had agreed with the substance of the jury instructions before they were given and that his only objection was to the speed with which they had been delivered by the court. Accordingly, we conclude that the defendant implicitly waived his jury instruction claim under the rule articulated in Kitchens.

         Notwithstanding these compelling facts, the defendant claims that he did not agree to the trial court's identification instruction. He contends that, in the absence of a marked copy of the jury instructions, there is no evidence in the record that defense counsel reviewed and approved of the precise language of the identification instruction. He also notes that, although the trial court stated during the on-the-record charging conference that it intended to broaden and expand on the language in the proposed instruction, there is no evidence that defense counsel had an opportunity to review and approve of the revised instruction before it was given. He thus argues that defense counsel's statement at the sentencing hearing that he agreed with the content of the jury instructions ‘‘cannot be reconciled'' with the state's burden of establishing waiver by showing that counsel reviewed the precise language being challenged on appeal, especially in light of counsel's claim at the hearing regarding the speedy delivery of the instructions. We disagree.

         We first observe that the waiver rule in Kitchens does not require that a copy of the proposed jury instructions be marked as an exhibit. It only requires evidence that the trial court gave the parties a ‘‘copy of the proposed jury instructions'' and that the reviewing court's determination of implied waiver ‘‘be based on a close examination of the record and the particular facts and circumstances of each case.'' State v. Kitchens, supra, 299 Conn. 482-83. Thus, in most instances, a combination of facts and circumstances rather than any single fact will support a finding of waiver. Moreover, a marked copy would not necessarily have provided the desired clarity as to what defense counsel waived because courts often make last minute changes to the jury instructions in on-the-record consultations with counsel immediately prior to their delivery, when there may be no time to memorialize the changes in a written document. Finally, to the extent the defendant suggests that the lack of a marked copy in the present case prevented the reviewing court from knowing that the trial court's draft included an instruction on eyewitness identification, we know that the draft included such an instruction because the trial court referred to it during the on-the-record charging conference when it stated that it ‘‘did give an identification [instruction] in the charge, '' and the court even referred to the page containing the part of the instruction it wanted to amend. Accordingly, although a marked copy of the proposed jury instructions may be helpful in determining whether defense counsel assented to an instruction that is challenged on appeal, it is not a requirement under Kitchens if the record contains other persuasive evidence that defense counsel had knowledge of, and assented to, the instructions that were given.

         Second, insofar as the defendant claims that he had no notice of the content of the final charge on witness identification because the court stated that it intended to ‘‘expand'' that instruction, the defendant takes the trial court's language out of context and ignores the explanation that followed. What the court actually stated was that it intended to expand the language on page 14 of the proposed instructions ‘‘to include . . . language to the effect that, in every criminal prosecution, it is the state's responsibility to show that the defendant is the person who committed the offense, and if [the jurors] are not satisfied of that evidence, then they cannot find the defendant guilty of any particular offense. I'm going to highlight that because, obviously, that is an issue in this case.'' Accordingly, the trial court explained precisely how it intended to expand the language in the identification instruction and referred to the actual page on which the new language would be added. Furthermore, and as the Appellate Court noted, the only other change to the instructions even indirectly relating to witness identification was the court's addition of language instructing that the state had the burden to prove identity beyond a reasonable doubt; State v. Bellamy, supra, 149 Conn.App. 672 n.3; which has no relevance to the defendant's claim on appeal.

         As for the defendant's suggestion that defense counsel indicated during the sentencing hearing that he had trouble following the jury charge because of its speedy delivery, the record shows that counsel's reference to a speedy delivery at the hearing had nothing to do with his ability to understand, and thus object to, the instructions that were given. The record instead shows that counsel was referring to the jurors' possible inability to understand the instructions because of their speedy delivery. The defendant thus misconstrues counsel's argument at the sentencing hearing.

         Finally, the cases on which the defendant relies are inapposite because their facts are distinguishable from the facts in the present case. See State v. Davis, 311 Conn. 468, 478, 88 A.3d 445 (2014) (finding no waiver because trial court's stated intention to deliver charge proposed by state ‘‘ ‘in essence, maybe not exactly, ' '' which defense counsel had not read, failed to provide adequate notice to defendant, and, therefore, ‘‘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''); State v. Devalda, 306 Conn. 494, 505 n.15, 50 A.3d 882 (2012) (finding no waiver because record failed to indicate ‘‘when or whether the defendant received a written copy of the proposed jury instructions''); State v. Brown, 299 Conn. 640, 659, 11 A.3d 663 (2011) (finding no waiver because record failed to indicate whether copy of final instructions given to counsel included correct charge or charge actually delivered to jury); State v. Collins, 299 Conn. 567, 597, 598, 10 A.3d 1005 (finding no waiver because record contained ‘‘no indication'' that trial court gave defendant advance copy of proposed jury instruction and, therefore, reviewing court could not ‘‘say with certainty whether the defendant had a meaningful opportunity to review the written instruction itself and to challenge any objectionable language therein''), cert. denied, ___ U.S. ___, 132 S.Ct. 314, 181 L.Ed.2d 193 (2011). Although it is true that, in one case, State v. Coleman, 304 Conn. 161, 170 n.3, 174, 37 A.3d 713 (2012), this court observed in dictum[10] that discussing the specific language of a challenged jury instruction, in the absence in the record of a rough draft or the original completed draft, supported a finding that the defendant in that case had been given a meaningful opportunity to review the charge, this statement was not intended as a general rule that specific reference to the language at issue is a prerequisite to a finding of waiver if there is other evidence that the defendant has been given a meaningful opportunity to review the instructions. We therefore reject the defendant's contention that he did not waive his jury instruction claim in the present case.

         II

         We next consider whether this court should overturn the waiver rule in Kitchens. The defendant contends that unpreserved claims of instructional error that satisfy the first two prongs of Golding should be considered by reviewing courts unless the error was induced or the claim was expressly waived by the challenging party. He specifically contends that Kitchens created an irrebuttable and incorrect presumption that all defense counsel who have had a meaningful opportunity to review draft jury instructions have knowledge of any and all constitutional errors contained therein, and that, through inaction or a silent record, all counsel are deemed under Kitchens to have waived a client's constitutional right to proper jury instructions for tactical reasons.[11] He further contends that this presumption is unrealistic because competent counsel who is aware of constitutional error never would waive a client's right to proper jury instructions, and the better explanation for counsel's silence is ‘‘[o]versight in the heat of battle, '' when time constraints do not allow for a lengthy review of the instructions. Accordingly, the defendant does not characterize counsel's silence or inaction with respect to an alleged instructional error as waiver, but as forfeiture, which federal courts define as ‘‘the failure to make the timely assertion of a right''; United States v. Olano, 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); accord State v. Kitchens, supra, 299 Conn. 474; see also State v. Kitchens, supra, 475 n.20; and review under the plain error doctrine. See State v. Kitchens, supra, 475 n.20. The defendant adds that the Kitchens rule improperly circumvents the policy expressed in Golding that unpreserved constitutional error should be reviewed and improperly shifts the responsibility for ensuring that the jury instructions are correct from the trial court and the state, where it belongs, to the defense.

         The state responds that the defendant misunderstands the meaning of the Kitchens waiver rule. The state argues that, when the trial court asks counsel to make an informed and binding judgment regarding whether to accept the jury instructions and counsel acquiesces, counsel waives the procedural right to object to the instructions on any of the multitude of possible grounds that counsel might presently be aware of or later perceive. Thus, ‘‘procedural waiver of the opportunity to object, by a professional who knew what was at stake, foreclosed any number of possible challenges that counsel might or might not have considered.'' The state further argues that this understanding of waiver comports with Connecticut's uncontroverted waiver doctrine and that overturning the rule would invalidate an entire body of waiver jurisprudence in this jurisdiction. The state maintains that the waiver rule in Kitchens is good policy because it gives parties an incentive to participate in the formulation of the jury instructions in a timely manner when errors can be corrected, thus promoting fair trials. We agree with the state.

         We begin by noting that this court adopted the waiver rule in Kitchens in order to clarify the law and to encourage the formation of accurate jury instructions consistent with the principles of fundamental fairness and the finality of judgments. To accomplish these objectives, the court explained that implied waiver may be found only after the trial court provides counsel with a written copy of the proposed instructions, allows counsel a meaningful opportunity to review them and solicits counsel's comments regarding proposed changes or modifications. State v. Kitchens, supra, 299 Conn. 482- 83. Counsel, in turn, must affirmatively accept by words or conduct the instructions proposed or given. See id., 483-84. If the record contains evidence that any of these steps has been omitted, implied waiver may not be found. Thus, the rule ‘‘would not allow waiver to be presumed from a silent record or from defense counsel's mere acquiescence in, or failure to object to, the jury instructions. A silent record, by definition, would not satisfy the [rule] because there would be no factual basis from which the court could infer a waiver, and mere acquiescence or failure to object, without more, would provide an insufficient basis for a finding of waiver because there would be no evidence from which the court could determine whether counsel had been given a meaningful opportunity to review, comment on and express satisfaction with the instructions, or whether counsel had, in fact, expressed such satisfaction before or after the instructions were given.''[12] Id., 483 n.23. We further explained that our rules of practice provide counsel with many opportunities to participate in the crafting of jury instructions, including the filing of a written request to charge and the request for an on-the-record charging conference. Id., 488, 493-94. Accordingly, the waiver rule in Kitchens, which represents a synthesis of our precedent and our rules of practice, provides counsel with the means necessary to apprise the court of his views and to ensure the accuracy of the jury instructions. The rule also serves as notice to counsel of the responsibility to participate in formulating the jury instructions and of the potentially adverse consequences that may follow should counsel fail to act.

         In light of these considerations, we emphatically disagree with the notion that the implied waiver rule is fundamentally unfair because it is based on the presumption that counsel was aware of, and rejected as a matter of trial strategy, every conceivable challenge to the jury instructions. The rule is not unfair because, as the state correctly observed and we stated in Kitchens, what is waived is the procedural right to appeal any defect in the jury instructions. See id., 483, 494. Even before our decision in Kitchens, Connecticut law provided that approval of the jury instructions by trial counsel acts as a waiver of all potential jury instruction claims and not merely claims arising from jury instructions that defense counsel specifically discussed on the record at trial. For example, in State v. Holness, 289 Conn. 535, 543-45, 958 A.2d 754 (2008), we specifically rejected the defendant's argument that he did not knowingly and intelligently waive his jury instruction claim and concluded that the defendant had waived every potential constitutional claim relating to the trial court's limiting instruction on hearsay evidence when defense counsel, in the exercise of his professional judgment, accepted the limiting instruction as satisfactory, even though counsel later argued he had been unaware that he could have raised a claim that the defendant's rights were violated under Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We explained that the state was not required to establish that defense counsel was aware of a possible constitutional claim in the factual scenario presented, but, rather, the trial court was entitled to presume that, in our adversary system, counsel was familiar with the relevant constitutional principles and had acted competently in determining that the limiting instruction was adequate to safeguard the defendant's sixth amendment rights. State v. Holness, supra, 544. We similarly concluded in State v. Brewer, 283 Conn. 352, 360-61, 927 A.2d 825 (2007), decided a little more than one year before Holness, that defense counsel's expressed satisfaction with a jury instruction on a lesser included offense constituted a waiver of the defendant's right to claim constitutional error on a ground not specifically discussed at trial.[13] Thus, application of the waiver rule in Kitchens to a defendant's subsequent procedural right to challenge the jury instructions on any substantive ground is consistent with the principle articulated in prior cases that the waiver of a procedural right constitutes the waiver of all of the claims within it.

         Justice Palmer, writing for the court, explained in Holness that ‘‘[t]o conclude otherwise would require the trial court to canvass defense counsel with respect to counsel's understanding of the relevant constitutional principles before accepting counsel's agreement on how to proceed . . . [and] there is nothing in our criminal law that supports such a requirement.''[14] State v. Holness, supra, 289 Conn. 544. That is because a comprehensive canvass of this nature not only would be difficult if not impossible to conduct, but would not promote this court's interest in judicial economy, given the time required to determine whether counsel was aware of every conceivable constitutional principle under which an instructional flaw might be identified.

         Our reasoning in Kitchens is also consistent with Connecticut and federal law governing a criminal defendant's waiver of other basic constitutional rights. These include the right to a jury trial; see, e.g., State v. Rizzo, 303 Conn. 71, 102-103, 31 A.3d 1094 (2011) (waiver of right to jury trial does not require canvass of various potential advantages of having jury decide case, and general knowledge of right being waived is sufficient), cert. denied, ___ U.S. ___, 133 S.Ct. 133, 184 L.Ed.2d 64 (2012); the right to a probable cause hearing; see, e.g., State v. Wilkins, 159 Conn.App. 443, 454, 123 A.3d 92 (waiver of right to probable cause hearing is valid ‘‘even when the trial court's waiver canvass does not exhaustively detail the procedural rights waived''), cert. denied, 319 Conn. 935, 125 A.3d 208 (2015); the right to enter a guilty plea; see, e.g., United States v. Ruiz, 536 U.S. 622, 630, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002) (guilty plea is knowing and final waiver, ‘‘despite various forms of misapprehension under which a defendant might labor''); United States v. Broce, 488 U.S. 563, 573, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989) (‘‘[o]ur decisions have not suggested that conscious waiver is necessary with respect to each potential defense relinquished by a plea of guilty''); Edwards v. United States, 256 F.2d 707, 709 (D.C. Cir.) (‘‘a layman should expect a plea of guilty to be treated as . . . a waiver of all defenses known and unknown''), cert. denied, 358 U.S. 847, 79 S.Ct. 74, 3 L.Ed.2d 82 (1958); Mainiero v. Liburdi, 214 Conn. 717, 725, 573 A.2d 1207 (1990) (‘‘[I]n order for a plea to be knowingly, voluntarily and intelligently made, a trial court is required to advise a defendant that his plea operates as a waiver of three fundamental constitutional rights-jury trial, confrontation and self-incrimination. . . . There is no requirement, however, that the defendant be advised of every possible consequence of such a plea.'' [Citation omitted; internal quotation marks omitted.]); State v. Gilnite, 202 Conn. 369, 374, 383, 521 A.2d 547 (1987) (‘‘an unconditional nolo contendere plea, when intelligently and voluntarily made, operates as a waiver of all nonjurisdictional defects and bars later challenges to pretrial proceedings, '' but ‘‘[t]here is no requirement . . . that the defendant be advised of every possible consequence of such a plea''); the right to competent counsel; see, e.g., Faretta v. California, 422 U.S. 806, 836, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (court was not required to assess whether pro se defendant knew how well he had mastered intricacies of law in order to represent himself because ‘‘his technical legal knowledge . . . was not relevant to an assessment of his knowing exercise of the right to defend himself''); State v. D'Antonio, 274 Conn. 658, 711, 877 A.2d 696 (2005) (knowing and voluntary waiver of right to counsel does not require that defendant have ‘‘perfect comprehension of each element of a criminal charge''); and the right to raise a double jeopardy claim. See, e.g., United States v. Cordoba, 71 F.3d 1543, 1546 (10th Cir. 1995) (‘‘[D]ouble jeopardy rights may be waived by agreement, even where double jeopardy was not specifically referred to by name in the plea agreement, when the substance of the agreement is to allow for double prosecution. . . . Conscious waiver is not necessary with respect to each potential defense relinquished by a plea agreement.'' [Citations omitted.]); State v. Price, 208 Conn. 387, 390, 544 A.2d 184 (1988) (constitutional immunity from double jeopardy is not constitutional right whose waiver must meet knowing, intelligent and voluntary standard but personal right that will be considered waived if not affirmatively pleaded at trial). In light of this overwhelming precedent, it makes sense to apply the same reasoning to trial counsel, who not only are presumed to understand the law and to provide competent representation, but are invited by our rules of practice to participate in the formulation of the jury instructions.[15]Accordingly, jury instruction waiver under Connecticut law never has been limited to instructions specifically discussed on the record at trial but has been understood as a waiver of the right to appeal all conceivable jury instruction claims that could have been raised in the trial court.

         In sum, overturning Kitchens on the ground that waiver should be construed more narrowly would be inconsistent with Holness, Brewer and other cases in which we have indicated that counsel's approval of the jury instructions waives all potential claims of instructional error. We have observed, with respect to other errors during trial proceedings, that ‘‘[w]hat this court said over [100] years ago still remains true today. A defendant must avail himself of the opportunity to make an objection and if he does not avail himself of the opportunity, he must be [held] to a waiver of the objection. Otherwise he would be permitted to lie by and speculate upon the chances of a verdict, and that cannot be tolerated.'' (Internal quotation marks omitted.) State v. Evans, 165 Conn. 61, 66, 327 A.2d 576 (1973), quoting State v. Tuller, 34 Conn. 280, 295 (1867); see also Wain-wright v. Sykes, 433 U.S. 72, 89, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (waiver rule discourages ‘‘ ‘sandbagging' '' by taking chances on acquittal, with intent to raise claims in habeas proceeding if gamble fails); State v. Kurvin, 186 Conn. 555, 566, 442 A.2d 1327 (1982) (‘‘[p]ermitting [instructional] claims of error which could have been raised at trial to be raised for the first time on appeal encourages trial by ambuscade and tends to transform criminal trials into games of chance''). We thus see no reason in the present case to depart from our precedent and from our general waiver doctrine by overturning the rule in Kitchens, which is based on the same rationale articulated in Holness and Connecticut's other prior waiver cases.

         The defendant nonetheless takes issue with all four policy grounds on which the court in Kitchens relied in concluding that the waiver rule is justified, including (1) the presumption that counsel is competent, (2) the rules of practice that provide for counsel's participation in the crafting of instructions, (3) the rules of fairness that place responsibility with the trial court and counsel to ensure that the instructions are correct, and (4) the existence of habeas review as a potential safety net. See State v. Kitchens, supra, 299 Conn. 486-89. We address each ground in turn.

         First, to the extent the defendant contends that the Kitchens waiver rule presumes counsel is omniscient, rather than competent, and that the rule does not allow for consideration of possible distractions, fatigue, discouragement or simple ignorance, the defendant misunderstands the rule, the meaning of competent counsel and the ability of counsel to identify errors before the instructions are given. As we previously discussed in greater detail, waiver in the context of jury instruction claims, jury trials, probable cause hearings, guilty pleas, and claims of ineffective assistance of counsel and double jeopardy does not contemplate knowledge by trial counsel or the defendant of every conceivable claim that might be raised on appeal. Trial counsel thus need not be omniscient under the waiver rule in Kitchens in order to provide a defendant with adequate representation.

         Insofar as the defendant also suggests that the rule will unfairly penalize defendants because of inadvertent mistakes by counsel resulting from fatigue, distractions or other factors relating to the rapid pace of a trial, competent counsel do not defer consideration of jury instructions until the last minute, thereby increasing the possibility of committing inadvertent mistakes. Counsel necessarily must consider what the state will be required to prove and how the jury should be instructed well before commencement of the trial proceedings in order to prepare a defense Thereafter, our rules of practice provide counsel with multiple opportunities to participate in the formulation of proper jury instructions based on counsel's professional assessment of what the jury needs to know to decide the case fairly Viewed in this light, the rule in Kitchens merely encourages counsel to utilize these opportunities, thus enhancing the probability that the instructions will be accurate We therefore reject the defendant's claim that the waiver rule sets an unattainable standard that requires more than competent counsel In fact, the opposite is true As Justice Katz observed in her concurring opinion in Kitchens, a review of Connecticut cases decided between 2000 and 2010 indicates that ‘‘the number of cases in which a defendant obtains reversal of his conviction on the basis of Golding review of instructional errors is negligible''; id, 523 (Katz, J, concurring); thus demonstrating that, prior to Kitchens, counsel rarely made major mistakes when assenting to jury instructions at trial and suggesting that this will continue to be the case. In sum, instead of unfairly burdening counsel or posing a difficult challenge, the waiver rule in Kitchens provides the court, the state and trial counsel with an additional procedural tool for ensuring that the instructions are correct.[16]

         The defendant next claims that, although the rules of practice provide for counsel's participation in the formulation of jury instructions, the degree of participation necessary for waiver to be found never has been clearly enunciated, thus creating confusion and no clear pattern among cases decided after Kitchens for future guidance. We disagree. The rules of practice, together with the waiver rule in Kitchens, provide exceptionally clear guidance as to how counsel may avoid waiver and successfully preserve a jury instruction claim. For example, the rules of practice provide that counsel may file a written request to charge; Practice Book §§ 42-16, 42-17 and 42-18; request an on-the-record charging conference; Practice Book § 42-19; obtain a summary of the substance of the proposed instructions at the close of evidence; Practice Book § 42-19; discuss modification of the instructions for purposes of correction or clarification; Practice Book § 42-24; and be given notice and the opportunity to make suggestions when the jury requests additional instructions following the start of deliberations. Practice Book § 42-27. The specificity of these rules suggests that counsel who fail to participate in formulating the jury instructions but have been given a meaningful opportunity to review them are on official notice that, unless they have objected to a particular instruction or a portion thereof, they have waived all future jury instruction claims. The rules of practice therefore serve the twin goals of providing the jury with accurate instructions and protecting the courts from expending limited resources on the adjudication of collateral attacks on the verdict that otherwise might have been avoided.

         Finally, even if there may be no clear pattern among the cases decided following Kitchens, the lack of such a pattern is not because the rule itself has never been clearly enunciated; rather, it is because reviewing courts are required to determine whether the unique facts and circumstances in any given case support a finding of waiver. This is no different from the type of ‘‘facts and circumstances'' analysis we conduct in other contexts; State v. Davalloo, 320 Conn. 123, 144 n.15, 128 A.3d 492 (2016) (application of marital communications privilege ‘‘necessarily depends on the facts and circumstances of a particular matter''); see also Trusz v. UBS Realty Investors, LLC, 319 Conn. 175, 214 n.26, 123 A.3d 1212 (2015) (future resolution of conflict between employee's and employer's free speech rights under General Statutes § 31-51q will be ‘‘in light of the particular facts and circumstances then presented'' [internal quotation marks omitted]); or from the ‘‘totality of the circumstances'' test the court conducts when assessing the constitutionality of challenged out-of-court eyewitness identifications; (internal quotation marks omitted) State v. Marquez, 291 Conn. 122, 160, 967 A.2d 56, cert. denied, 558 U.S. 895, 130 S.Ct. 237, 175 L.Ed.2d 163 (2009); or the probable cause necessary for a warrantless arrest based on an informant's tip. State v. Johnson, 286 Conn. 427, 437, 944 A.2d 297, cert. denied, 555 U.S. 883, 129 S.Ct. 236, 172 L.Ed.2d 144 (2008). Cases subject to these tests do not fall easily into predictable patterns because the facts and circumstances in each case are necessarily unique.[17]

         The defendant also claims that the rule in Kitchens unfairly places the entire burden on defendants because the defendant is the only party who suffers a penalty when a reviewing court finds waiver. He adds that the rule provides a disincentive for the state to identify and correct errors when it knows that a review of any potential error will be waived if it does not object to the instructions, thus allowing the state to enjoy all of the benefits and suffer none of the risks of its trial strategy. The defendant further contends that the rule improperly and unfairly shifts a portion of the decision as to which unpreserved claims are adjudicated from the court to the state. These arguments are unpersuasive.

         First, they ignore the significant fact that only a defendant is entitled to raise on appeal a claim that the jury instructions were incorrect. This means that, if the defendant is acquitted on the basis of instructions that misstate an element of the crime, the state may not appeal from the judgment on that ground but must accept the acquittal, even if the evidence may have been sufficient to establish the defendant's guilt under the proper instruction. See State v. Ledbetter, 240 Conn. 317, 323, 692 A.2d 713 (1997) (‘‘under most circumstances, the state may not appeal from a judgment of acquittal, even when that judgment may have been the result of a misconstruction of the law''). Moreover, the state has an ethical obligation to seek justice and to bring to the court's attention any inaccuracy or deficiency in the jury instructions. The state thus has a strong incentive to make sure that the jury instructions are correct. Second, a finding of waiver opens the door to a future habeas proceeding on which the state and the court will be required to expend additional limited resources that could have been devoted to other pending trials.[18] Third, trial courts have a duty ‘‘to give jury instructions that are accurate in law, adapted to the issues and adequate to guide the jury in reaching a correct verdict''; State v. Butler, 207 Conn. 619, 636, 543 A.2d 270 (1988); and no judge, as a matter of pride and reputation, wants a reviewing court to deem the jury charge legally incorrect or inadequate to guide the jury. As a consequence, the waiver rule serves as an incentive for all those involved in the trial proceedings, including the state and the presiding judge, to make certain that the jury instructions are accurate, [19] a conclusion with which the defendant indirectly agrees in his argument on judicial economy.[20]

         As for the defendant's argument that the Kitchens waiver rule allows the state to exercise undue influence over whether unpreserved constitutional claims are reviewed under Golding because the state may decide against making a waiver claim in some cases for tactical reasons, this argument is highly speculative. The defendant does not suggest what that tactical advantage might be, and we perceive none. By failing to make a waiver claim, the state must then defend against the claim and risk a decision by the reviewing court in favor of the defendant. Even if the defendant's argument had some degree of validity, the defense must bear its share of responsibility for making certain that the jury instructions are correct. Thus, when defense counsel fails to take advantage of the many opportunities available during the trial proceedings to obtain accurate instructions, the defendant cannot blame the state for deciding in some cases and not in others to assert a claim of waiver. Regardless of any uncertainty, however, defendants should expect the state to assert a waiver claim in any case in which such a claim may be validly raised and have no reason to complain if the state fails to do so.

         With respect to habeas review, the defendant argues that review typically takes place several years after the resolution of a direct appeal, prevents the speedy correction of obvious constitutional errors and puts further pressure on an already overburdened habeas docket. We agree that habeas review delays the resolution of an instructional claim that is deemed waived on direct appeal. We nonetheless consider habeas review good policy because only in the habeas court may a record be developed sufficient to determine whether counsel waived the claim for constitutionally acceptable strategic reasons. See State v. Kitchens, supra, 299 Conn. 497. As we explained in Kitchens: ‘‘[A] habeas proceeding provides a superior forum for the review of a claim of ineffective assistance because it provides the opportunity for an evidentiary hearing in which the attorney whose conduct is challenged may testify regarding the reasons he did not contest the instruction at trial. . . . A habeas proceeding thus enables the court to determine whether counsel's failure to take exception or otherwise to participate in formulating the instructions was due to mere incompetence or to counsel's trial strategy, which would not be possible in a direct appeal in which there is no possibility of an evidentiary hearing. An aggrieved party is thus not without recourse in the event that the court deems a claim of instructional impropriety waived on appeal.'' (Citation omitted.) Id., 496-97. In other words, the factual record on direct appeal is insufficient to determine whether counsel was making a strategic decision or whether his failure to object to the instruction was an oversight.

         Kitchens provides a perfect example of the value of habeas review. On direct appeal, this court determined that the defendant had waived his unpreserved claim of instructional error. Id., 500. The defendant then filed a habeas petition, in which he argued that his trial counsel rendered ineffective assistance, in part for failing to object to the jury instructions on intent that he challenged on direct appeal. See Kitchens v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-11-4003979-S (September 17, 2014), aff'd sub nom. Kitchens v. Commissioner of Correction, 167 Conn.App. 851, 143 A.3d 1208 (2016). The habeas court concluded, however, that the defendant's trial counsel did not act improperly when he failed to object because it was part of his trial strategy. Id. Counsel testified that his theory of defense was that the defendant had done nothing wrong, that the victim was injured by accident and that some of the claimed events on the night in question did not occur. Id. Counsel therefore focused at trial on weaknesses in the victim's testimony and her lack of credibility instead of on the intent instructions, which counsel testified had ‘‘ ‘no impact' '' on his theory of defense. Id. He also told the habeas court that he had no concerns about the instructions, which the trial court had indicated were pattern instructions, in view of the law and theory under which he was litigating the case. See id. Thus, this court's determination in Kitchens that the defendant implicitly waived his claim of instructional error on intent was vindicated by trial counsel's testimony during the habeas proceeding that he had no problem with the jury instructions.[21]The concurring justices in Kitchens, on the other hand, would have reviewed the defendant's claim regarding the contested jury instruction without the benefit of the knowledge gained at the habeas proceeding that counsel had made a strategic choice to accept the instructions that were given.[22] See State v. Kitchens, supra, 299 Conn. 526 (Katz, J., concurring); id., 551 (Palmer, J., concurring).

         We finally disagree with the defendant's argument that the court in Kitchens mislabeled forfeiture as waiver and that this court should follow federal waiver law, which provides that, in cases that do not involve invited or induced error, waiver occurs only when the challenged instruction is discussed on the record and defense counsel stipulates or specifically approves of the instruction by words or other conduct. See, e.g., United States v. Polouizzi, 564 F.3d 142, 153 (2d Cir. 2009) (claim of instructional error was waived because, ‘‘[f]aced with the parties' incompatible positions regarding the proposed definition of unlawfulness, the [D]is-trict [C]ourt proposed a third option, '' and defendant, having been ‘‘[p]resented with this option . . . indicated that the instruction was satisfactory''); United States v. Sanders, 520 F.3d 699, 702 (7th Cir. 2008) (claim of instructional error was waived because defense counsel expressly stated that she preferred challenged aiding and abetting instruction over alternative instruction). This is similar to the argument made by Justice Katz in her concurrence in Kitchens. State v. Kitchens, supra, 299 Conn. 510-15, 525 (Katz, J., concurring). We remain unpersuaded by this argument for three reasons.

         First, waiver under Kitchens, which requires that counsel affirmatively express satisfaction with the instructions proposed or given, is consistent with our precedent on waiver and inconsistent with this court's understanding of forfeiture as ‘‘the failure to make the timely assertion of a right . . . .'' (Internal quotation marks omitted.) State v. Davis, supra, 311 Conn. 495; accord Mozell v. Commissioner of Correction, 291 Conn. 62, 71, 967 A.2d 41 (2009).

         Second, the defendant's claim that Connecticut should follow federal waiver law overlooks the fact that federal law is not monolithic and that some federal courts in recent years have adopted a view of waiver similar to that of Kitchens. For example, the Eleventh Circuit Court of Appeals has concluded repeatedly during the past fifteen years that defendants have waived jury instruction claims by indicating to the trial court that the instructions were acceptable even in the absence of an on-the-record discussion of the precise instruction challenged on appeal. See United States v. Carter, 776 F.3d 1309, 1323 (11th Cir. 2015) (declining to review claim of instructional error with respect to certain counts of indictment because counsel made only one objection regarding jury instructions on those counts, which was sustained, and, therefore, defendant waived right to appeal any other previously unchallenged aspect of jury instructions concerning those counts); United States v. Silvestri, 409 F.3d 1311, 1337 (11th Cir.) (‘‘[w]hen a party responds to a court's proposed jury instructions with the words ‘the instruction is acceptable to us, ' such action constitutes invited error, '' and, therefore, defendant affirmatively waived right to challenge instruction when his counsel told court that jury instructions ‘‘ ‘covered the bases' ''), cert. denied, 546 U.S. 1048, 126 S.Ct. 772, 163 L.Ed.2d 598 (2005); United States v. Fulford, 267 F.3d 1241, 1247 (11th Cir. 2001) (having stated through counsel that court's proposed supplemental instruction in response to jury question ‘‘ ‘is acceptable to us, ' '' defendant ‘‘waived his right to appeal that instruction''). Courts in the First and Second Circuits also have found waiver under similar facts. See United States v. Hansen, 434 F.3d 92, 101 (1st Cir.) (defense counsel not only failed to object to court's omission of proposed instruction, but also affirmatively stated ‘‘ ‘I am content' '' after court instructed jury, and, therefore, claim of improper jury instruction was waived on appeal), cert. denied, 549 U.S. 894, 127 S.Ct. 203, 166 L.Ed.2d 164 (2006); Beastie Boys v. Monster Energy Co., 66 F.Supp.3d 424, 451 (S.D.N.Y. 2014) (‘‘At the charge conference, the [c]ourt invited counsel ‘to comment on each page [of the draft jury instructions] on which you have an issue.' . . . Although [the defendant] raised other issues . . . it did not object to the proposed instructions . . . . To the extent [the defendant's] present argument implicitly challenges the jury instructions given at trial, it is waived.'' [Citations omitted.]). Accordingly, the defendant's portrayal of the rule in Kitchens as contrary to federal waiver law fails to acknowledge that some federal courts have begun to adopt a broader view as to the facts required to support a finding of an implied waiver.

         Third, and even more significant, the defendant's argument overlooks the fact that federal waiver law is inconsistent with our jurisprudence, thus making a comparison of federal and Connecticut law extremely difficult, if not impossible. Although Connecticut and federal law both distinguish between forfeiture and waiver on the ground that ‘‘forfeiture is the failure to make the timely assertion of a right [whereas] waiver is the intentional relinquishment or abandonment of a known right''; (internal quotation marks omitted) United States v. Olano, supra, 507 U.S. 733; accord Mozell v. Commissioner of Correction, supra, 291 Conn. 71; the practical consequences of this distinction are different under Connecticut and federal law.

         Federal review of unpreserved trial errors is governed by rule 52 (b) of the Federal Rules of Criminal Procedure, which provides that ‘‘[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention.''[23] Rule 52 (b), however, is permissive rather than mandatory. United States v. Olano, supra, 507 U.S. 735. ‘‘If the forfeited error is ‘plain' and ‘affect[s] substantial rights, ' the [reviewing] court . . . has authority to order correction . . . but is not required to do so.'' Id. Thus, ‘‘[t]he standard of ‘plain error' . . . goes only to the issue of reviewability and not to the issue of whether a reversal is warranted. . . . [A]n error unobjected to at trial may be so plain as to warrant review under [r]ule 52 (b); yet the error may be harmless and, therefore, not justify a reversal.'' United States v. Wilson, 690 F.2d 1267, 1274 (9th Cir. 1982), cert. denied, 464 U.S. 867, 104 S.Ct. 205, 78 L.Ed.2d 178 (1983). The exception to rule 52 (b) is when there has been a waiver of the unpreserved claim. United States v. Olano, supra, 732-33. A finding of waiver requires evidence that the defendant knowingly and voluntarily approved of the disputed instruction after an on-the-record discussion of the instruction during the trial proceedings; see, e.g., United States v. Conner, 583 F.3d 1011, 1026 (7th Cir. 2009); United States v. Polouizzi, supra, 564 F.3d 1153; or very clear evidence that the failure to object was due to tactical considerations. See, e.g., United States v. Cooper, 243 F.3d 411, 416 (7th Cir.), cert. denied, 534 U.S. 825, 122 S.Ct. 64, 151 L.Ed.2d 31 (2001).

         In contrast, Connecticut waiver law is construed more broadly than federal waiver law, and plain error review more strictly. An unpreserved constitutional claim that has not been waived under Kitchens may be afforded Golding review but is not automatically afforded plain error review, as in the federal courts. That is because the plain error doctrine in Connecticut, ‘‘codified at Practice Book § 60-5, is an extraordinary remedy used by appellate courts [only] to rectify errors committed at trial that, although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party. [T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. That is, it is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised at all in the trial court, nonetheless requires reversal of the trial court's judgment, for reasons of policy. . . . In addition, the plain error doctrine 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. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . . [Thus, an appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice.'' (Citations omitted; internal quotation marks omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009).

         In sum, federal law generally, but not always, limits waiver in jury instruction cases to a small number of cases in which the disputed instruction has been discussed on the record at trial or in which there is clear evidence in the record that the instruction was accepted by defense counsel for tactical reasons. Virtually all other jury instruction claims are considered forfeited and are subject only to plain error review. Although plain error may be found in some cases, a remedy is not mandated but, rather, is granted at the discretion of the reviewing court upon a showing that the error was clear and affected the defendant's substantial rights. In Connecticut, however, the system for reviewing unpreserved constitutional claims is more complicated. Unpreserved claims that have not been waived are not automatically reviewed under the plain error doctrine because the plain error doctrine in Connecticut, unlike under federal law, is one of reversibility rather than reviewability. In other words, plain error is reserved for the very few cases in which the alleged error is so extraordinary that automatic reversal is required, there being no need for a discretionary determination by the court regarding the imposition of a remedy. Consequently, most forfeited claims of constitutional dimension in Connecticut are reviewed under Golding if they have not been waived. Given these differences, the defendant's comparison of forfeited claims under state law with forfeited claims under federal law that are afforded plain error review is inappropriate because it presumes that plain error review is the same in the state and federal systems. It is not. We therefore reject the defendant's comparison of state and federal law on waiver and forfeiture as misleading and irrelevant.

         We instead agree with the state that the rule in Kitchens improves the process of constructing fair and balanced jury instructions because it provides incentives to the parties and the court to ensure that the instructions are accurate. In contrast, allowing appellate review of any unpreserved jury instruction claim of constitutional magnitude under Golding gives appellate counsel unbridled freedom to raise a multiplicity of jury instruction claims that trial counsel waived for tactical reasons, as was the case in Kitchens. Finally, the defendant never explains why an express waiver is not subject to many of the same deficiencies attributed to an implicit waiver, such as the failure of counsel to perceive a defect in a particular instruction, even though counsel may have suggested or specifically approved of the instruction during an on-the-record charging conference. We therefore conclude that the implied waiver rule this court adopted in Kitchens should not be overturned.

         The concurring justices disagree with the Kitchens waiver rule on the ground that it is too expansive and upsets the balance achieved under Golding. Chief Justice Rogers, who embraces an approach to waiver similar to the federal approach, is specifically concerned that habeas review is not an effective and equivalent substitute for direct appellate review of novel constitutional claims because it involves substantial delay and provides an inhospitable framework for resolving such claims. She also contends that the waiver rule has spawned an entirely new area of jurisprudence addressing whether the requirements for waiver have been met, and fears that a claim of instructional error deemed waived under Kitchens will be raised anew in a habeas proceeding. We disagree.

         With respect to her first concern, Chief Justice Rogers overlooks our express determination in this case to ‘‘leave the merits and a full discussion of this argument for another day, when such a claim is presented to this court on direct appeal.'' Footnote 22 of this opinion. As for her contention that the waiver rule in Kitchens has created an entirely new area of jurisprudence, there is no evidence to support this claim. Kitchens is only one in a long line of cases over the course of several decades in which Connecticut courts have considered implied waiver in the context of jury instruction claims. See State v. Kitchens, supra, 299 Conn. 470-72 (citing more than fifteen years of precedent addressing implied waiver of jury instruction claims). Thus, clarification of Connecticut's waiver law in Kitchens has not resulted, nor will it result, in an entirely new area of jurisprudence. Reviewing courts always have been required to examine the specific facts and circumstances of each case to determine whether waiver occurred. The only difference between past and future waiver cases is that the rule is more specific under Kitchens with respect to jury instructions because it incorporates the requirements of the rules of practice. It is therefore unlikely that courts will spend more time addressing waiver claims in the post-Kitchens era. Rather, courts are likely to spend less time reviewing such claims because Kitchens narrowed the concept of waiver by specifying the conditions under which waiver may be found and precluding waiver solely on the ground that counsel generally agreed with the proposed instructions. This will potentially result in more accurate jury instructions and fewer waiver claims for reviewing courts to consider. Indeed, Chief Justice Rogers concedes that the rule in Kitchens has resulted in a reduction in the number of direct appeals substantively addressing claims of instructional error. Not surprisingly, an examination of habeas cases decided in the post-Kitchens era also reveals that very few defendants have filed petitions alleging ineffective assistance of trial counsel on the ground that counsel implicitly waived a jury instruction claim under Kitchens. See, e.g., Kitchens v. Warden, supra, Superior Court, Docket No. TSR-CV-11-4003979-S; Bharrat v. Commissioner of Correction, Superior Court, judicial district of Tolland, Docket No. TSR-CV-12-4004615-S (August 27, 2014), appeal dismissed, 167 Conn.App. 158, 143 A.3d 1106 (2016). Moreover, the petitions in those cases also contained claims of error unrelated to Kitchens. Chief Justice Rogers' concern that Kitchens will result in an entirely new area of jurisprudence and a greater workload for Connecticut courts is thus unwarranted.

         Finally, to the extent Chief Justice Rogers prefers the federal approach to determining whether a jury instruction claim has been waived, we point to the imbalance that would result from attempting to combine federal and state waiver law. Although federal waiver law permits the review of a greater number of claims than would be permissible under state law because more federal claims are deemed forfeited, and thus reviewable, than would be deemed reviewable under Kitchens, the ultimate remedy under the federal plain error doctrine is more difficult to obtain than the remedy available under Golding that Chief Justice Rogers recommends. That is because the federal remedy for plain error is discretionary, whereas the remedy under Golding is automatic reversal of the judgment if the four-pronged test of Golding is satisfied. Accordingly, permitting Connecticut courts to review a greater number of claims by following federal forfeiture law in the absence of a state remedy comparable to the stringent federal plain error remedy for determining whether claims succeed opens the door to the abuses that Golding review was intended to discourage, such as trial by ambuscade. See, e.g., Moye v. Commissioner of Correction, 316 Conn. 779, 784-85, 114 A.3d 925 (2015). Adoption of the federal standard on forfeiture to determine whether jury instruction claims may be reviewed, as Chief Justice Rogers suggests, also would result in two different waiver standards for determining whether unpreserved claims may be reviewed, one standard for reviewing jury instruction claims and another standard for reviewing other unpreserved claims, which would lead to confusion and unnecessary inconsistency in our waiver law.

         We turn next to Justice Palmer's concurring opinion, in which he also argues that the waiver rule in Kitchens should be overturned. We reject his lengthy analysis in all respects because, among other things, it is based in part on the construction of a false dichotomy between the reasoning in Kitchens and the present case, and on an incorrect understanding of how the court in Kitchens used the term ‘‘acquiescence'' when discussing the state's claims and Connecticut's prior waiver law. We also reject Justice Palmer's approach to waiver, which is far more extreme than the federal approach and, to our knowledge, has not been adopted by any other jurisdiction. Indeed, the approach he suggests would have the effect of virtually eliminating Connecticut's implied waiver doctrine in the context of jury instruction claims. We address each point in turn.

         Justice Palmer initially contends that the implied waiver rule in Kitchens was predicated on the legal fiction, or presumption, ‘‘that a defense counsel who reviews and then acquiesces in the trial court's proposed instructions has considered and declined to raise every potential objection to every part of the instructions'' but that we have ‘‘disavowed'' this rationale and now justify the rule on the ground that ‘‘defense counsel, upon reviewing the trial court's proposed jury charge, knowingly and voluntarily waives her client's procedural right to later challenge those instructions on appeal.'' This is simply untrue. There is no difference in the reasoning articulated in Kitchens and the present case.

         Justice Palmer constructs a false dichotomy lacking any basis in fact. The court in Kitchens repeatedly explained, as we do in the present case, that waiver involves the ‘‘intentional relinquishment or abandonment of a known right or privilege''; (internal quotation marks omitted) State v. Kitchens, supra, 299 Conn. 469; accord id., 474; and that, ‘‘among the rights that may be waived by the action of counsel in a criminal proceeding is the right of a defendant to proper jury instructions.'' Id., 467. The court in Kitchens also described the state's argument as whether the defense had ‘‘waived or forfeited the right to challenge [the jury instructions] on appeal''; id., 473; ultimately concluding that, if the criteria for the Kitchens waiver rule are satisfied, ‘‘the defendant may be deemed to have knowledge of any potential flaws [in the jury instructions] and to have waived implicitly the constitutional right to challenge the instructions on direct appeal.'' Id., 483. Thereafter, the court in Kitchens similarly acknowledged that ‘‘implied waiver, as alleged in [that] case, arises from an inference that the defendant knowingly and voluntarily relinquished the right in question''; (emphasis omitted) id.; and that competent counsel is presumed, ‘‘when determining whether a defendant's waiver of a constitutional right or statutory privilege has been knowing and intelligent.'' Id., 489. Insofar as the court in Kitchens also stated in a footnote that counsel's acceptance of the jury instructions following sufficient notice of their content supports an inference that counsel had knowledge of all potential constitutional defects contained therein; id., 487 n.25; that statement was intended to explain in part why waiver constitutes a knowing and voluntary relinquishment of the right to appeal a jury instruction claim. Accordingly, there is no basis for Justice Palmer's argument that our reasoning in the present case differs on this essential point from the reasoning in Kitchens.

         Justice Palmer also argues that the court in Kitchens failed to provide clear guidance as to what constitutes implied waiver, in part because the court used the term ‘‘acquiescence'' in a ‘‘misleading and inconsistent manner.'' He contends that ‘‘Kitchens described as acquiescence everything from defense counsel's sitting silently by and failing to object to the court's jury charge to defense counsel's expression of affirmative satisfaction or agreement with the charge, '' and that the result of this inconsistency is confusion and a lack of understanding as to the type of conduct that may lead to a finding of waiver. Justice Palmer also claims that the court in Kitchens and the majority opinion in the present case have indicated that ‘‘mere acquiescence'' constitutes waiver, which entails passive acceptance. This is not the case.

         Justice Palmer continues to misunderstand the reasoning in Kitchens and the present case. The court in Kitchens did not use the term ‘‘acquiescence'' when articulating the modified waiver rule but described implied waiver as requiring, among other things, counsel's ‘‘affirmative acceptance'' of the instructions that were given.[24] State v. Kitchens, supra, 299 Conn. 484, 496; see also id., 482-83. The court in Kitchens also expressly cautioned that ‘‘mere acquiescence'' is not sufficient to establish waiver.[25] Id., 483 n.23. As we explain in this opinion and in Kitchens, ‘‘mere acquiescence'' is insufficient to establish waiver because a finding of waiver requires that all of the facts and circumstances be taken into account, including ‘‘whether counsel had been given a meaningful opportunity to review, comment on and express satisfaction with the instructions, [and] whether counsel had, in fact, expressed such satisfaction before or after the instructions were given.'' Id. Justice Palmer's fixation on the court's occasional use of the term ‘‘acquiescence'' in Kitchens when describing the state's arguments and the decisions of other jurisdictions discussing waiver claims, and his suggestion that Kitchens intended waiver to be found only when there is mere acquiescence with respect to the court's proposed instructions, is thus unjustified. To the extent Justice Palmer's concern may stem from the fact that neither Kitchens nor this opinion precisely defines the meaning of ‘‘affirmative acceptance, '' we determined in Kitchens that whether counsel has satisfied this requirement is best left to the discretion of the reviewing court after examining the record before it. Moreover, we are not aware of any case in which a reviewing court has construed ‘‘affirmative acceptance'' as meaning passive acquiescence. See, e.g., State v. Johnson, 316 Conn. 45, 53, 111 A.3d 436 (2015) (affirmative acceptance means counsel must express satisfaction with instruction, not merely acquiesce in it); State v. Webster, 308 Conn. 43, 63, 60 A.3d 259 (2013) (finding waiver in part because court solicited comments from counsel several times during and following charging conference, and counsel ultimately affirmatively accepted instructions proposed and given). In sum, nothing in Kitchens or this opinion supports Justice Palmer's suggestion that Kitchens endorsed a definition of implied waiver that requires no more than passive acceptance of the jury instructions without actually agreeing to them, and his preoccupation with the court's reference to ‘‘acquiescence'' in Kitchens when describing the state's argument and how other courts have understood waiver in the past is irrelevant.

         Justice Palmer also argues that Kitchens should be overruled under the doctrine of stare decisis. We disagree with this argument because we have concluded that Kitchens was correctly decided. We thus need not address this issue any further.

         In explaining his own view as to when implied waiver should be found, Justice Palmer resurrects his argument in Kitchens that ‘‘an unpreserved claim that instructional error of constitutional magnitude has occurred should be unreviewable under Golding only when (1) defense counsel induced or invited the error, or (2) it clearly can be inferred that counsel-or the defendant-actually was aware of the alleged defect in the instruction but chose for strategic or other reasons not to object (true waiver).''[26] Given his critique of Kitchens and his apparent willingness to accept the concept of implied waiver, even though narrowly drawn, this standard makes no sense for two reasons.

         First, the unavailability of Golding review in cases of induced or invited error is based on exactly the same presumption, or ‘‘legal fiction, '' Justice Palmer rejects as ‘‘illogical, '' ‘‘unfounded'' and ‘‘implausible'' in the context of implied waiver under Kitchens. The presumption is that the claim is unreviewable because the defendant had knowledge of any potential flaws in the instructions that were given but intentionally disregarded them for strategic reasons. State v. Kitchens, supra, 299 Conn. 470 (‘‘[t]he rationale for declining to review jury instruction claims when the instructional error was induced or the claim was implicitly waived is precisely the same: [t]o allow [a] defendant to seek reversal [after] . . . his trial strategy has failed would amount to allowing him to [induce potentially harmful error and then] . . . ambush the state [and the trial court] with that claim on appeal'' [internal quotation marks omitted]); accord State v. Fabricatore, 281 Conn. 469, 482, 915 A.2d 872 (2007); State v. Gibson, 270 Conn. 55, 67, 850 A.2d 1040 (2004); State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004). In neither circumstance is the record required to show that the defendant was actually aware of the specific instructional error that is claimed on appeal. Accordingly, Justice Palmer's unwillingness to allow Golding review in cases of induced or invited error is at odds with his willingness to allow Golding review of claimed error that has been implicitly waived under Kitchens.

         Second, Justice Palmer's definition of implied waiver, which would limit waiver to cases in which ‘‘it clearly can be inferred that counsel-or the defendant-actually was aware of the alleged defect in the instruction but chose for strategic or other reasons not to object (true waiver), '' is so narrow that it abolishes, for all intents and purposes, the implied waiver doctrine in Connecticut in the context of jury instruction claims. In Kitchens, the court responded to this same, now recycled argument by observing that the concept of implied waiver under Justice Palmer's definition very likely would be ‘‘eviscerate[d]'' because ‘‘there appears to be no way that counsel may clearly demonstrate such knowledge except by expressly informing the court.''[27]State v. Kitchens, supra, 299 Conn. 485 n.25. It also bears repeating that Justice Palmer was the author of the majority opinion in State v. Holness, supra, 289 Conn. 535, in which the court concluded that the defendant had waived his unpreserved jury instruction claim when defense counsel expressed satisfaction with the contested instruction because the state was not required to establish that counsel was aware of the potential constitutional flaw. See id., 543-44. Rather, the court in Holness stated that the trial court was entitled to presume that counsel was familiar with the relevant constitutional principles and had acted competently in agreeing to the jury instruction challenged on appeal. See id., 544. Justice Palmer's present views thus are inconsistent with the position he articulated as the author of the majority opinion in Holness.

         We conclude with the observation that Justice Palmer, in his enthusiasm to overturn the waiver rule in Kitchens, makes many other points that are either unsupported or supported by irrelevant sources to which he cites. For example, he declares that incarcerated defendants will suffer unnecessarily under Kitchens as a result of having to litigate their jury instruction claims in habeas proceedings and proclaims that Juma Lahai, the petitioner in Lahai v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-09-4003028-S (May 7, 2012), ‘‘remained incarcerated for a full year longer than was necessary to review and vindicate his [Kitchens] claim.'' Text accompanying footnote 41 of Justice Palmer's concurring opinion. A quick check of the facts, however, reveals that Justice Palmer is mistaken. In State v. Lahai, 128 Conn.App. 448, 18 A.3d 630, cert. denied, 301 Conn. 934, 23 A.3d 727 (2011), the Appellate Court rejected Lahai's jury instruction claim because the error was induced by defense counsel, who specifically requested the instruction that was given. See id., 457. The court cited Kitchens only for its passing reference to the doctrine of induced error, and not for its clarification of the implied waiver rule. See id. Thereafter, the habeas court noted that both parties had conceded that the error was induced when it concluded that the error was prejudicial under the second prong of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See Lahai v. Warden, supra. Accordingly, the parties in Lahai did not rely on Kitchens, and Justice Palmer's citation to Lahai in describing the purportedly deleterious effects of Kitchens is unsupported by the history of that case.[28]

         Justice Palmer makes a similar mistake when claiming that the concept of waiver should be narrowly drawn so as not to unduly limit Golding review. He cites State v. Pond, 315 Conn. 451, 108 A.3d 1083 (2015), as a case in which this court was able to clarify the law and resolve a split of opinion in the Appellate Court after ‘‘the state argued unsuccessfully that the instructional claims of the defendant . . . were waived under Kitchens . . . .'' Text accompanying footnote 28 of Justice Palmer's concurring opinion. The state, however, did not argue in Pond that the claims were waived under Kitchens. To the extent the Appellate Court in Pond considered instructional error before the case was appealed to this court, the issue was whether the defendant had induced the instructional error, not whether he had waived his claim of instructional error under Kitchens. See State v. Pond, 138 Conn.App. 228, 238, 50 A.3d 950 (2012), aff'd, 315 Conn. 451, 108 A.3d 1083 (2015). Thus, Kitchens was cited only for its reference to the doctrine of induced error. See id. In fact, the Appellate Court specifically observed that ‘‘[t]he state does not appear to rely on the waiver doctrine of [Kitchens].''[29] Id., 238 n.7.

         Justice Palmer further declares that, ‘‘with five years now having passed since this court decided Kitchens, time and experience have borne out my concerns, and those of Justice Katz, that the majority's reliance on habeas proceedings as a panacea was seriously misplaced. When Kitchens was decided, we predicted that the rule would increase rather than decrease the burden on judicial resources because any time saved in avoiding appellate review of instructional error would be more than offset by the need for a full habeas trial on the issue. In fact, of the six cases decided in the year following this court's decision in Kitchens in which the Appellate Court found claims of instructional error waived under Kitchens, four already have resulted in habeas petitions related to the alleged instructional error.[30]

         ‘‘When Kitchens was decided, we also warned that habeas proceedings would only push back the inevitable, as petitioners whose ineffective assistance of counsel claims were denied on collateral review ultimately would return to the Appellate Court for review of those decisions. Sure enough, the first generation of post-Kitchens habeas appeals is now coming home to roost. See, e.g., Bharrat v. Commissioner of Correction, 167 Conn.App. 158, 143 A.3d 1106 (2016).'' (Footnotes altered.) Justice Palmer thus suggests an impending flood of new habeas litigation based on Kitchens. We nonetheless ask, what, exactly, is coming home to roost?

         Justice Palmer cites four habeas cases during the past five years in which a Kitchens claim was purportedly raised. Four cases in five years, however, can hardly be regarded as an intolerable consequence of Kitchens. Moreover, none of the cited cases is relevant because the rule in Kitchens was either not raised or only one of several issues raised by the petitioner. In Carrion v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-11-4004163-S (December 15, 2015), for example, the petitioner, Christopher Carrion, asserted three claims of error, only one of which was a claim of ineffective assistance based on instructional impropriety.[31] Furthermore, the habeas court in Carrion did not consider trial counsel's conduct under the performance prong (first prong) of Strickland. See id.; see also Strickland v. Washington, supra, 466 U.S. 687. This court previously had concluded, in a majority opinion authored by Justice Palmer, that, even if it assumed, without deciding, that Carrion's claim of instructional impropriety had not been implicitly waived under Kitchens, the challenged instruction had not deprived Carrion of a fair trial. State v. Carrion, 313 Conn. 823, 827, 100 A.3d 361 (2014). The habeas court in Carrion thus disposed of the Kitchens claim in a single sentence, noting this court's conclusion that the instruction was not harmful and stating that ‘‘the issue as to this jury instruction is res judicata . . . .'' (Emphasis omitted.) Carrion v. Warden, supra. Carrion is now appealing from the judgment denying his habeas petition to the Appellate Court but has raised no jury instruction claim. Carrion v. Commissioner of Correction, Connecticut Appellate Court, Docket No. AC 38794 (appeal filed January 15, 2016). Accordingly, there is no basis for Justice Palmer's conclusion that Carrion is the first of many ‘‘post-Kitchens habeas appeals . . . coming home to roost.'' To the contrary, instructional error in Carrion was only a minor part of Carrion's ineffective assistance of counsel claim and is not being litigated in the appeal from the habeas court's judgment.

         As for the other three cases that Justice Palmer cites, the court determined in Lahai v. Warden, supra, Superior Court, Docket No. TSR-CV-09-4003028-S, that the instructional error had been induced; and no Kitchens claim was raised in Myers v. Warden, Superior Court, judicial district of Tolland, Docket No. TSR-CV-14-4005938-S (withdrawn August 12, 2016), or in the habeas proceeding and appeal that followed in Bharrat. See generally Bharrat v. Commissioner of Correction, supra, 167 Conn.App. 158; Bharrat v. Commissioner of Correction, supra, Superior Court, Docket No. TSR-CV-12-4004615-S. Consequently, Justice Palmer provides no reliable support for his claim that a large amount of habeas litigation will be coming home to roost in the post-Kitchens era.

         Justice Palmer finally suggests, as he did in Kitchens, that the waiver of a jury instruction claim under Kitchens may be overcome if defense counsel informs the trial court that he has not raised a constitutional challenge to the charge because he is unaware of any such claim. See State v. Kitchens, supra, 299 Conn. 541 (Palmer, J., concurring). He also suggests that the defense bar should test this theory. We reject these suggestions not only for the reasons stated in Kitchens; see id., 485 n.25; but for the additional reason that such conduct would be inconsistent with our rules of practice, which seek to encourage good faith participation by counsel in the formulation of jury instructions. Qualified approval of the jury instructions, as Justice Palmer suggests, also would effectively limit waiver in this context to claims of induced or invited error.

         The judgment of the Appellate Court is affirmed.

          In this opinion EVELEIGH, ESPINOSA and ROBINSON, Js., concurred.

          ROGERS, C. J, concurring.

         I agree with the defendant, Brandon Montrell Bellamy, that this court's marked expansion of the doctrine of implied waiver of claims of jury instructional error in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), was mistaken and, therefore, I would overrule that decision and return to the much narrower conception of implied waiver that previously governed our jurisprudence in this area. Application of a more restrictive implied waiver rule leads me to conclude that the defendant's claim of instructional error is reviewable on its merits pursuant to State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).[1] Nevertheless, the defendant's claim fails under Golding because it does not raise a claim of constitutional error.[2]

         It is well established that ‘‘Golding [review] is a narrow exception to the general rule that an appellate court will not entertain a claim that has not been raised in the trial court. The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court and the opposing party. . . . Nevertheless, because constitutional claims implicate fundamental rights, it also would be unfair automatically and categorically to bar a defendant from raising a meritorious constitutional claim that warrants a new trial solely because the defendant failed to identify the violation at trial. Golding strikes an appropriate balance between these competing interests: the defendant may raise such a constitutional claim on appeal, and the appellate tribunal will review it, but only if the trial court record is adequate for appellate review.'' (Internal quotation marks omitted.) Moye v. Commissioner of Correction, 316 Conn. 779, 784-85, 114 A.3d 925 (2015). Upon reflection, I believe that Kitchens improperly upset the balance struck by Golding for a substantial category of cases, those raising jury instructional error, and did so for questionable reasons. Returning to a narrower implied waiver rule would support the goals of Golding yet prevent the abuse of the leniency it affords.

         In Kitchens, this court announced the following general rule to determine whether a claim of jury instructional error will be deemed to have been waived by trial counsel and, therefore, unreviewable on appeal: ‘‘[W]hen 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. Such a determination by the reviewing court must be based on a close examination of the record and the particular facts and circumstances of each case.'' State v. Kitchens, supra, 299 Conn. 482-83. The court explained that the foregoing rule rests on an ‘‘inference, or ‘assumption' of fact''; (emphasis omitted) id., 487 n.25; that counsel was aware of the defect later raised on appeal and decided not to assert it at trial, and, therefore, that a waiver could be found without evidence that counsel actually knew of the defect. Id., 483. In that sense, we acknowledged, the implied waiver rule depended on a ‘‘legal fiction.'' Id., 487 n.25.

         Upon further consideration, I am convinced that the inference upon which the Kitchens rule relied was an unreasonably broad one, and that the circumstances described in Kitchens more accurately reflect, in the majority of instances, a forfeiture of the right to claim a specific error in the instructions rather than a waiver of that right.[3] See State v. Davis, 311 Conn. 468');">311 Conn. 468, 495-503, 88 A.3d 445 (2014) (Palmer, J., concurring). As a result, Kitchens effectively has carved out a particular category of unpreserved trial error and deemed it unworthy of review pursuant to State v. Golding, supra, 213 Conn. 239-40. While Golding permits appellate consideration of any other type of unpreserved constitutional claim, Kitchens revokes the right to such review by invoking the unrealistic assumption that defendants, through their counsel, knowingly and purposefully have relinquished that right in the described circumstances.[4] In my view, the benefits of this approach do not outweigh the costs, either to defendants with meritorious claims of harmful instructional error, to the court system or to society as a whole.

         In Kitchens, we relied on a number of additional factors in support of an expansive implied waiver rule, among them the remaining availability of habeas review. See State v. Kitchens, supra, 299 Conn. 496-98. Upon further reflection, I now realize that, to a defendant with a meritorious constitutional claim, habeas review is not an effective and equivalent substitute for direct appellate review. First, because of the delay attendant to filing a habeas petition, receiving a full hearing and awaiting a decision thereon, a party who ultimately prevails in that forum likely will have spent years of his or her life incarcerated for a conviction that was constitutionally infirm. It is no answer that these cases are relatively few. Second, unlike a direct appeal decided pursuant to Golding, a habeas appeal presents an inhospitable framework for novel constitutional claims or those that require the overruling of established authority in order to succeed. Compare In re Yasiel R., 317 Conn. 773, 780-81, 120 A.3d 1188 (2015) (party may prevail under third prong of Golding even in absence of existing, binding precedent supporting his or her constitutional claim), with Ledbetter v. Commissioner of Correction, 275 Conn. 451, 461-62, 880 A.2d 160 (2005) (‘‘numerous state and federal courts have concluded that counsel's failure to advance novel legal theories or arguments does not constitute ineffective performance'' and citing cases), [5] cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006).[6]

         The unavailability of Golding review for a particular category of unpreserved constitutional claims does not just harm individual defendants who might have raised those claims on direct appeal. It also has costs for society as a whole, by decreasing and/or delaying the availability of appellate jurisprudence, primarily concerning the criminal law. In addition to correction of trial error for the benefit of individual defendants, appellate review serves the societal function of articulating, developing and refining the common law. R. Cal-houn, ‘‘Waiver of the Right to Appeal, '' 23 Hastings Const. L.Q. 127, 172 (1995). ‘‘Historically, courts of appeal have been relied upon to announce, clarify and harmonize the rules of decision employed by the legal system in which they serve. . . . This is a concern that extends far beyond an individual defendant's desire for access to corrective process.'' (Footnotes omitted; internal quotation marks omitted.) Id. As we have recognized in our jurisprudence governing vacatur, judicial decisions are not merely for the litigants, but are ‘‘valuable to the legal community as a whole.'' (Internal quotation marks omitted.) State v. Boyle, 287 Conn. 478, 489, 949 A.2d 460 (2008). Notably, when this court or the Appellate Court analyzes a claim under Golding, it contributes to the development of the law regardless of whether the claim succeeds and results in relief for the defendant.

         Another purpose of appeals is to legitimize state decision making. ‘‘In other words, appeals are an essential part of the overall procedural structure which operates to assure us that the system is a fair one. It is essential that the system not only be fair but that it be perceived as fair.'' R. Calhoun, supra, 23 Hastings Const. L.Q. 178. The right to appeal ‘‘assures the public, rightly or wrongly, that trial court decisions will be reviewed for accuracy and fairness and adds an aura of probity to the criminal justice process.'' Id. In my view, addressing a constitutional issue substantively when the record is adequate to do so, rather than deeming it unreviewable, adds considerably to this endeavor.

         Further, I am not convinced that the benefits of the Kitchens rule outweigh these costs. In particular, I question whether the intended efficiencies truly will be achieved. Although the rule has reduced the number of direct appeals addressing claims of jury instructional error substantively, it has spawned an entirely new area of jurisprudence addressing whether the requirements for a waiver have been met.[7] Moreover, when claims are deemed waived under Kitchens, they are not necessarily disposed of with finality. Rather, at least some, and perhaps many, merely will be deferred, only to be raised anew in a habeas action.[8] Furthermore, the habeas forum is less efficient than a direct appeal in that a trial must be held, at which counsel must explain his or her reasons for failing to object to the instruction at issue, perhaps with yet another appeal to follow. As the majority acknowledges, ‘‘a finding of waiver [in a direct appeal] opens the door to a future habeas proceeding on which the state and the court will be required to expend additional limited resources that could have been devoted to other pending trials.'' Given these circumstances, I am inclined to conclude that disposing of an unpreserved claim of instructional error at the earliest opportunity, on its merits pursuant to Golding, is the most efficient approach.

         For the foregoing reasons, I believe that this court should abandon the Kitchens experiment of broadly denying direct appellate review of unpreserved constitutional claims of jury instructional error and, instead, return to the much narrower conception of implied waiver in this area that predated Kitchens. Under pre-Kitchens implied waiver jurisprudence, a waiver was not deemed to have occurred by application of any preconceived general rule, but rather, was determined more flexibly on a case-by-case basis in view of all the relevant facts and circumstances. Claims of instructional error that were not identified at trial were deemed waived by defense counsel's approval of the charge[9]only when, at the very least, there was specific, on-the-record discussion of the particular instruction later claimed to be defective on appeal, and defense counsel, thereafter, explicitly assented to that instruction.[10]Stated otherwise, the record demonstrated that counsel was focused on the specific instruction later claimed to be erroneous, thought about it, and then indicated to the trial court that he or she had no issue with that instruction.[11] Again, an assessment of waiver is dependent on all of the circumstances surrounding this on-the-record discussion of the instruction at issue, and counsel's agreement thereto, but at a very minimum, a focused discussion and agreement must have occurred.[12] This approach more closely resembles that generally taken in the federal courts, [13] which also permit appellate review of forfeited claims but deny it to waived claims.[14] Although even a narrower implied waiver rule rests on an inference, rather than actual proof, that counsel consciously decided to abandon a known claim, it is a much more reasonable inference[15]and, I believe, one that appropriately accounts for the varying interests of defendants, the state, courts and society at large.[16]

         Applying the narrower, pre-Kitchens analysis to the facts of this case leads me to conclude that the defendant's instructional claim was not waived and, therefore, should be reviewed pursuant to State v. Golding, supra, 213 Conn. 239-40. The defendant's claim is that the trial court's instruction on identification was improper, because it did not include certain factors that a jury should consider when determining whether a particular identification is reliable. The record indicates that, following the trial court's distribution of written copies of its proposed charges, the court held an in-chambers, off-the-record charging conference with counsel. Thereafter, on the record, the trial court described certain changes to the instructions that it would be making. The trial court mentioned in particular that its proposed charge included an identification instruction that included some factors to be considered, without any elaboration as to those factors, then it stated that it would be adding language to the effect that it was the state's burden to show that the defendant was the person who had committed the crime.[17] There was no on-the-record discussion between the trial court and counsel concerning the identification instruction. After describing one other instruction, the trial court asked counsel whether they had any further exceptions, and both counsel stated that they did not.

         Under these circumstances, I would not find a waiver of the defendant's instructional claim. First, there is no copy of the trial court's proposed instructions in the record. Furthermore, although the record suggests that the trial court and counsel discussed the identification instruction in chambers, the extent of that discussion and defense counsel's participation therein is not apparent. Finally, there is no substantive, on-the-record discussion of the instruction to evidence defense counsel's focus thereon. Rather, the trial court's description of the instruction, to which counsel thereafter simply agreed, is quite general. In my view, this is not enough to infer waiver.

         Although I believe that the defendant's request for Golding review of his claim should not be foreclosed due to waiver, I nevertheless conclude that the claim necessarily fails for another reason. Specifically, because the claim is instructional and not constitutional in nature; see footnote 2 of this concurring opinion; it cannot prevail under the second prong of Golding. Accordingly, I would affirm the judgment of the Appellate Court based on different reasoning. See Small v. Commissioner of Correction, 286 Conn. 707, 709, 946 A.2d 1203 (2008).

         For the foregoing reasons, I respectfully concur.

          PALMER, J., with whom McDONALD, J., joins, concurring in the judgment.

         In State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), a narrow majority of this court concluded that, when a trial court has afforded defense counsel a meaningful opportunity to review its proposed jury instructions, and when, in the course of an on-the-record charging conference, defense counsel agrees with or simply acquiesces in[1] those instructions, an appellate court will not later review an unpreserved claim that the instructions violated the constitutional rights of the defendant. See id., 482-83. The stated rationale for carving out this unique exception to Golding[2]review was that a defense ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.