State v. Baptiste (concurring)
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****************************************************** The officially released date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the officially released date appearing in the opinion. In no event will any such motions be accepted before the officially released date. All opinions are subject to modification and technical correction prior to official publication in the Connecticut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced and distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. BAPTISTE CONCURRENCE PALMER, J., concurring. I agree with the majority s conclusion that the Appellate Court improperly determined that the defendant, Oles J. Baptiste, waived his claim that the trial court s jury instructions were constitutionally inadequate. Specifically, I agree that the defendant s claim is not foreclosed under the waiver principles that this court recently adopted in State v. Kitchens, 299 Conn. 447, 10 A.2d 942 (2011). In addition to resolving this issue the sole issue presented by the defendant s certified appeal the majority also states that advance written copies of [the court s jury instructions] should be provided to counsel in all trials, except for possibly the shortest of trials where it is not feasible. The majority further explains that, if the [trial] court chooses to conduct the charging conference off the record, it should take care to accurately note the matters discussed in the conference once the parties are back on the record, and the court should invite counsel s acquiescence with regard to those comments. Although I agree that, whenever feasible, the trial court should provide the parties with advance written copies of the jury charge, and that it also makes sense for the court to summarize accurately the matters discussed at any off-the-record charging conference, in my view, these practices are to be encouraged because they are important components of a process designed to ensure that the court s jury instructions are fair, thorough and balanced. See, e.g., Practice Book ยงยง 42-16 through 42-19. To the extent that the majority encourages these practices in the interest of creating a record in the trial court that increases the likelihood that a claim of instructional error will be deemed to have been waived under Kitchens, however, I do not share that perspective. As I explained in my concurring opinion in Kitchens, I do not believe that defense counsel s failure to object to the trial court s jury instructions on constitutional grounds after having been afforded a reasonable opportunity to review them provides a sufficient basis for the conclusion that counsel knowingly and intentionally waived any and all such objections on behalf of the defendant. Indeed, it is far more likely that defense counsel simply did not perceive any constitutional infirmity in the instructions. See State v. Kitchens, supra, 299 Conn. 538 42 (Palmer, J., concurring); see also id., 517 19 (Katz, J., concurring). Because I remain unconvinced by the rationale of Kitchens, and, further, because I believe that this court s decision in Kitchens unfairly and unreasonably deprives defendants of Golding review of unpreserved constitutional challenges to jury instructions, I do not favor adopting measures that are designed to facilitate or promote the implementation of our holding in Kitchens. In any event, I agree with the majority s conclusion in the present case that the defendant s constitutional claim is not barred by Kitchens. I therefore concur.
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