State v. Thomas W. (dissenting)
Annotate this Case
Download PDF
****************************************************** 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. THOMAS W. DISSENT PALMER, J., dissenting. In State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), this court held that a defendant will be deemed to have impliedly waived any and all claims challenging the constitutionality of the trial court s jury instructions if, after being provided with an advance written copy of the instructions and an adequate time to review them, defense counsel does not object to the instructions. See id., 482 83. For the reasons set forth in my concurring opinion in Kitchens, I do not believe that waiver may be implied in such circumstances, primarily because, in my view, those facts are insufficient to support the conclusion that defense counsel intentionally relinquished a known right, the strict standard that this court demands for purposes of establishing the waiver of a constitutional right. See id., 536 42 (Palmer, J., concurring). In the present case, the majority applies this court s holding in Kitchens to a scenario in which defense counsel expressly objected to a particular jury instruction on one occasion but failed to do so on subsequent occasions. Although I am obligated to abide by this court s holding in Kitchens, I am not bound to agree to extend that holding to the facts of the present case, and I decline to do so. The present facts are insolubly ambiguous as to whether defense counsel s silence on the latter occasions represented a tactical decision to reverse course and to waive the claim that he previously had raised, or whether his failure to object merely was an oversight. Because of this factual ambiguity, Kitchens does not mandate a finding that defense counsel, with knowledge that the court s jury instructions were improper, intentionally waived the right of the defendant, Thomas W., to challenge the instructions.1 I therefore would conclude that Kitchens does not bar the constitutional claim that the defendant has raised on appeal. Accordingly, I respectfully dissent. 1 I note that, in its effort to apply Kitchens, the majority deems it appropriate, for purposes of resolving the state s claim of waiver, to draw inferences with respect to the state of mind of the trial judge and of defense counsel. I do not believe that it is appropriate for this court to engage in such fact finding. See, e.g., Kerrigan v. Commissioner of Public Health, 289 Conn. 135, 222 23 n.58, 957 A.2d 407 (2008) (appellate courts lack authority to find facts, which is exclusive province of trial courts). Although this problem stems from our decision in Kitchens, it is highlighted by the majority s handling of the present case.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
