STATE v. THOMAS W., SC 18496

Judicial District of New Haven

 Criminal; Appellate Review; Waiver; Whether the Defendant Waived his Claim that the Court's Jury Instructions Unfairly Diluted the State's Burden of Proof.  The defendant was charged with risk of injury to a child and sexual assault.  In its preliminary instructions to the jury, the court informed the jury that it could not make a final decision about whether the defendant was "innocent or guilty" of a particular charge until it heard the court's final instructions.  The court also informed the jury that it should only decide innocence or guilt on the basis of what it hears in the courtroom.  The defendant objected to the court's statement that the jury was to decide whether he was innocent or guilty, asserting that he was cloaked with the presumption of innocence.  The court indicated that it would provide the jury with an instruction clarifying the presumption of innocence, and the defendant agreed that such an instruction would be sufficient.  The next day, the court instructed the jury on the presumption of innocence, and the defendant took no exceptions to the instruction.  During its final charge to the jury, the court again stated that it was the jury's job to decide whether the defendant was innocent or guilty.  The defendant was later convicted as charged and appealed to the Appellate Court.  On appeal, he argued, among other things, that the trial court improperly diluted the state's burden of proof and placed the burden of proof on him by telling the jurors that they must decide whether he was innocent or guilty.  He admitted that he did not object to the court's final charge and sought review under State v. Golding, 213 Conn. 233, 239-40 (1989), which holds that an unpreserved claim may be reviewed on appeal only if the defendant establishes, among other things, that a constitutional violation occurred that deprived him of a fair trial.  The Appellate Court (115 Conn. App. 467) found that the defendant was not entitled to Golding review and affirmed the trial court's judgment.  In so ruling, it stated that although the defendant preserved his claim regarding the preliminary instructions, he waived the claim on the following day when he agreed to the trial court's clarification regarding the presumption of innocence.  The Appellate Court further indicated that the parties reviewed a copy of the final jury instructions in chambers and that the defendant did not object to the instructions.  It thus determined that the defendant consented to and expressed satisfaction with the final charge, thereby waiving his constitutional rights with regard to the charge.  In this appeal, the Supreme Court will determine whether the Appellate Court properly concluded that the defendant waived his claim that the trial court's jury instructions regarding the presumption of innocence unfairly diluted the state's burden of proof.