State v. Davis

• Decision Date: 22 April 2014
• Docket Number: No. 18864.,18864.
• Citation: 311 Conn. 468,88 A.3d 445
• Court: Connecticut Supreme Court
• Parties: STATE of Connecticut v. Raquann Tyrone DAVIS.

311 Conn. 468

88 A.3d 445

STATE of Connecticut

v.Raquann Tyrone DAVIS.

No. 18864.

Supreme Court of Connecticut.

Argued March 15, 2013.

Decide April 22, 2014.

Glenn W. Falk, assigned counsel, for the appellant (defendant).

Rocco A. Chiarenza, assistant state's attorney, with whom, on the brief, were Kevin D. Lawlor, state's attorney, and Charles M. Stango, senior assistant state's attorney, for the appellee (state).

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH and McDONALD, Js.

ROGERS, C.J.

This appeal requires us to further define the contours of the implied waiver doctrine announced in State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011). The defendant, Raquann Tyrone Davis, claims that the trial court improperly instructed the jury that it could find him guilty under a theory of liability not set forth in the state's information. Specifically, the defendant argues that although the state alleged, in count one of its long form information charging him with robbery in the first degree, that “during the commission of the crime [the defendant] was armed with what he represented by his words or conduct to be a firearm,” in violation of General Statutes § 53a–134(a)(4), the court instructed the jury that the defendant could be found guilty if all the other elements of robbery in the first degree had been proven, and any person participating in the commission of the crime possessed a firearm.¹ Because the defendant did not preserve his claim for appellate review by objecting to the jury instructions, he sought review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989). ² The Appellate Court concluded that the defendant had implicitly waived any objection to the jury instructions, and declined to review the defendant's instructional error claim on appeal. State v. Davis, 131 Conn.App. 50, 64–65, 26 A.3d 128 (2011). We granted the defendant's petition for certification to appeal, limited to the following question: “Did the Appellate Court properly apply the waiver doctrine set forth in State v. Kitchens, [supra, at 447, 10 A.3d 942]?” State v. Davis, 302 Conn. 943, 29 A.3d 468 (2011).

We conclude that, under the facts of the present case, the defendant did not implicitly waive his claim under the rule set forth in Kitchens, because he was never provided with the court's actual proposed charge, and consequently did not have a meaningful opportunity to review the instructions. Accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court's opinion sets forth the following facts that the jury reasonably could have found. “Sometime after 10 p.m. on July 12, 2008, the defendant, Thaddeus Lowery and Brian Backman were passengers in an automobile being operated by Gerard Jones. Jones drove to a deli in West Haven, spoke with two other men there and then walked toward the victim, Dayshon Caple, who was standing near a restaurant that was close by. Jones, who was acquainted with the victim, discussed obtaining marijuana from him. Following their conversation, Jones and the victim, who believed that Jones had offered him a ride home in exchange for marijuana, approached Jones' automobile. The defendant and Lowery exited the automobile. The defendant brandished a revolver that he held close to the victim's chest and Lowery brandished a shotgun that he pointed at the victim's head. The victim, perceiving that he was about to be robbed, told the men that he did not ‘have anything.’ The defendant cocked the hammer on his revolver and asked the victim, ‘you think we playin’?' Thereafter, the defendant and Lowery searched the victim's clothing and stole his cellular telephone, a quantity of marijuana in his possession and his wallet that contained approximately $40. Jones stood nearby while these events unfolded. After the defendant, Lowery and Jones got back into their automobile with the victim's possessions and drove away, the victim fled to a nearby gas station where he called family members for assistance. Later, Jones provided information concerning these events to the police.” State v. Davis, supra, 131 Conn.App. at 52–53, 26 A.3d 128. The Appellate Court also noted that, “[c]ontrary to the victim's testimony, Jones, who testified on behalf of the state ... testified that the defendant was the assailant who had pointed a shotgun at the victim's head during the robbery.” Id., at 53 n. 2, 26 A.3d 128.³

The following facts and procedural history are also relevant to the defendant's appeal. By means of a long form information, the state alleged that the defendant committed the crime of robbery in the first degree in violation of § 53a–134(a)(4).⁴ In count one of its information, the state alleged that “during the commission of the crime [the defendant] was armed with what he represented by his words or conduct to be a firearm....” (Internal quotation marks omitted.) Id., at 53, 26 A.3d 128.

Subsequently, “[o]n January 4, 2010, the defendant filed six written requests to charge covering different instructions. Although one of these requests to charge bore the title ‘Defendant's Request to Charge: Robbery First Degree,’ neither this request nor any other submitted by the defendant covered the elements of robbery in the first degree. On January 4, 2010, the state filed a written request to charge that, among other topics, covered the elements of robbery in the first degree. Following the portion of the request to charge that covered the elements of robbery in the first degree, the state cited to ‘[§] 6.4–1 [of the] Connecticut Selected Jury Instructions.’

“On January 5, 2010, immediately after the state rested, the court held a charge conference with the attorneys.... The following is an excerpt from the colloquy that took place during the conference:

“ ‘The Court: I have received the robbery charge [filed by the state], which is the standard charge. I intend to give the robbery [charge] in essence, maybe not exactly, but the robbery charge will be given. The usual charges, the function of the court and the jury, proof beyond a reasonable doubt, burden of proof, circumstantial and direct evidence, they will be given. [I have] the request for conspiracy. Counsel ... that's your charge, conspiracy? Yes?

“ ‘[The Prosecutor]: Use the state's conspiracy charge, Your Honor?

“ ‘The Court: Yes.

“ ‘[The Prosecutor]: Yes.

“ ‘The Court: Counsel, any objection to the conspiracy charge as presented by—

“ ‘[Defense Counsel]: Your Honor, I have not seen a charge submitted by the state. I ... could have left it in my office, but I haven't had time to review it. Is it the standard charge? It's robbery?

“ ‘[The Prosecutor]: Throughout the computer. I'm not very fair.

“ ‘The Court: Right off the cyberspace.

“ ‘[Defense Counsel]: Based upon [the prosecutor's] representation, Your Honor, there's no objection....

“Thereafter, the defendant's attorney made an oral motion for a judgment of acquittal. After hearing argument concerning the motion, the court denied it. Following its ruling, the court asked counsel, ‘anything else?’ The state replied in the negative and the defendant's counsel did not raise any additional matters for consideration.

“The next day, January 6, 2010, the court addressed counsel, noting that it had received a written motion for a judgment of acquittal from the defendant. After stating that the motion was denied, the court stated, ‘[a]nything else before the jury comes out?’ The defendant's attorney replied, ‘[n]o, Your Honor.’ Following closing arguments, the court delivered its charge to the jury. After it instructed the jury as to the elements of the offenses at issue, the court excused the jury for a recess. The court, addressing counsel, stated: ‘[T]hat completes the substantive charge. Any comments? Anything I need to correct now? Think about it.’ Following the morning recess, the court asked counsel: ‘Anything I need to add or detract?’ The defendant's attorney replied, ‘I have nothing, Your Honor.’ After the court delivered the remainder of its charge, the defendant's attorney did not raise any objection related to the court's robbery instruction.” (Emphasis added; footnotes omitted.) Id., at 56–59, 26 A.3d 128.

The jury returned a verdict of guilty on both counts of part one of the information; see footnote 4 of this opinion; and the trial court rendered judgment in accordance with the verdict. The defendant then appealed from the judgment of the trial court to the Appellate Court, claiming, inter alia, that the trial court improperly instructed the jury that it could find the defendant guilty on the basis of a theory of liability that was not set forth in the state's information.⁵ Because the defendant did not object to the trial court's jury instructions, he sought review under State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823.

The Appellate Court declined to review the claim on the ground that the defendant had waived any objections to the trial court's jury charges. It reasoned that the trial court's statement that it intended to give the state's proposed charge, which was available on the Judicial Branch website, “in essence, maybe not exactly,” effectively provided the defendant with the proposed instructions. The Appellate Court further reasoned that, because the trial court's jury instructions “mirrored the state's instruction in all material respects”; State v. Davis, supra, 131 Conn.App. at 60, 26 A.3d 128; and defense counsel had an opportunity to review those instructions on the Judicial Branch website overnight, counsel's failure to object to the jury instructions constituted an implied waiver under Kitchens.

On appeal to this court, the defendant claims that the Appellate Court's conclusion that he implicitly waived his instructional challenges is inconsistent with the implied waiver doctrine in State v. Kitchens, supra, 299 Conn. 447, 10 A.3d 942. Specifically, the defendant asserts that he did not have a meaningful opportunity to review the jury...