State v. Arluk  (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. Arluk CONCURRENCE LANDAU, J., concurring. I agree with the conclusion reached by the majority, but write separately to express my considerations with respect to the analysis in part II of the opinion. The majority relies on State v. Payne, 63 Conn. App. 583, 777 A.2d 731 (2001), rev d on other grounds, 260 Conn. 446, 797 A.2d 1088 (2002), to conclude that the defendant did not satisfy the third prong of Golding1 and, therefore, that his claim of constitutional error cannot be sustained. In Payne, the court adopted the reasoning of State v. Cooper, 38 Conn. App. 661, 669 70, 664 A.2d 773, cert. denied, 235 Conn. 908, 665 A.2d 903 (1995), cert. denied, 517 U.S. 1214, 116 S. Ct. 1837, 134 L. Ed. 2d 940 (1996), in which this court held that the defendant could not satisfy the third prong of Golding because, at trial, he implicitly waived a challenge to the alleged constitutional deprivation that was the basis of his claim on appeal. State v. Payne, supra, 63 Conn. App. 588. Payne held that a defendant could not prevail under Golding on a claim that he implicitly waived at trial. Id.2 Respectfully, I do not read Cooper in the manner in which it was applied in Payne and its progeny. The basis of the court s holding in Cooper was a waiver analysis, not a Golding analysis. The reasoning of the Cooper court is set out in part I A of the opinion. State v. Cooper, supra, 38 Conn. App. 664 71. In that case, the defendant claimed that the court violated his constitutional rights by improperly instructing the jury that the highway in question is a public highway. So you need not deal with that element and you need not make that finding. 3 (Internal quotation marks omitted.) Id., 664. He did not preserve his claim at trial and sought review pursuant to Golding. The Cooper court began a Golding analysis, first concluding that the issue was reviewable in that the record was adequate, and second, that the claim was of constitutional magnitude. Id., 665 66. The court then turned to the third prong of Golding, i.e., whether a constitutional violation clearly existed, noting that the statute under which the defendant had been charged contained the element of operating a motor vehicle on a public highway. Id., 666. The defendant in Cooper argued that the court s instruction violated the doctrine against mandatory presumptions enunciated in Sandstrom v. Montana, 442 U.S. 510, 517 24, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979). State v. Cooper, supra, 38 Conn. App. 666 67. This court concluded, however, that it need not decide whether the Sandstrom doctrine applied to [the defendant in Cooper] because the defendant waived his right to require the state to prove the public highway element of the offense beyond a reasonable doubt. Id., 667. The court continued: In the usual Golding situation, the defendant raises a claim on appeal which, while not preserved at trial, at least was not waived at trial. The due process clause prescribes that the defendant has a right to require the fact finder to determine each element of an offense charged beyond a reasonable doubt. . . . Under the circumstances, however, the record reveals that the defendant conceded the element in question, and, therefore, waived his right to require the fact finder to determine the element. (Citations omitted; internal quotation marks omitted.) Id., 667. The court continued to travel the waiver road for the next several pages of the opinion until it concluded that the defendant had waived his due process right to require the state to prove that element. Id., 670. The court never returned to Golding. Although I clearly see how one can be led down the Golding path, I am convinced that the Cooper court arrived at its holding on the basis of a waiver analysis. My reading suggests that a Cooper analysis does not provide us with the rule that a defendant cannot prevail under Golding on a claim that he implicitly waived at trial. State v. Payne, 63 Conn. App. 588. Cooper holds that a waiver is a waiver is a waiver. Consequently, I would resolve the defendant s claim by way of a waiver analysis, rather than by way of a Golding examination. For those reasons, I respectfully concur. 1 State v. Golding, 213 Conn. 233, 239 40, 567 A.2d 823 (1989). This court also applied the Payne-Cooper analysis in State v. Corona, 69 Conn. App. 267, 271 73, 794 A.2d 565, cert. denied, 260 Conn. 935, 802 A.2d 88 (2002). 3 The defendant in Cooper had been charged with operating a motor vehicle while under the influence of intoxicating liquor in violation of General Statutes ยง 14-227a (a), which provides in relevant part: No person shall operate a motor vehicle while under the influence of intoxicating liquor . . . on a public highway of this state . . . . 2

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