STATE v. JASON SHOLA AKANDE, SC 18325

Judicial District of Hartford

 Criminal; Jury Instructions; Waiver; Golding Review; Whether Defendant Acquiesced at Trial to the Content of Certain Jury Instructions, Thereby Waiving his Right to Golding Review of his Claim that the Instructions were Constitutionally Deficient.  After a jury trial, the defendant was convicted of, among other things, two counts of forgery in the second degree.  On appeal, he claimed that the trial court's jury instructions on the elements of forgery in the second degree violated his due process rights.  Because he failed to object to the instructions at trial, he sought review under State v. Golding, 213 Conn. 233, 239-40 (1989), which held that an unpreserved claim may be reviewed on appeal only if the defendant establishes, among other things, that a constitutional violation occurred that deprived the defendant of a fair trial.  The Appellate Court (111 Conn. App. 596) determined that the defendant was not entitled to Golding review because he had waived his claim at trial by acquiescing to the content of the jury charge.  It explained that after the instructions were given, the trial court gave the parties the opportunity to state any objections, but the defendant's attorney failed to respond.  It also pointed out that after the jury requested a written copy of the instructions, the attorneys were permitted to review the materials overnight before they were distributed to the jury and that when the court asked the next morning whether the attorneys had any comments on the charge, defense counsel replied: "No, Your Honor."  The Appellate Court emphasized that defense counsel did not merely engage in passive silence, but that, instead, he actively stated that he had no comments regarding the written instructions.  It further opined that, for purposes of the concept of waiver, a defense attorney's statement that he or she has no comments concerning a jury charge is akin to stating that the charge was correct.  In light of the foregoing, the Appellate Court concluded that the defendant had waived his claim at trial, and, therefore, he could not establish that a constitutional violation clearly existed as required by Golding.  In this appeal, the Supreme Court will determine whether the Appellate Court's decision was correct.