State v. Mungroo (dissenting)
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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. MUNGROO FIRST DISSENT KATZ, J., dissenting. With their decision, the majority continues its attack on what was once a foundation of this court s jurisprudence: review of unpreserved constitutional errors pursuant to State v. Golding, 213 Conn. 233, 239 40, 567 A.2d 823 (1989).1 In doing so, it widens the fissure cleft by State v. Kitchens, 299 Conn. 447, A.3d (2011), in this court s ability to rectify violations of criminal defendants constitutional rights. And so, I go [o]nce more unto the breach, dear friends, once more . . . . 2 I would conclude that the defendant, Nazra Mungroo, did not waive review of her constitutional claim pursuant to Golding. It is apparent from the record that counsel for the defendant believed that the state s case alleging fraudulent receipt of workers compensation benefits turned on whether the state had proven that the defendant had misrepresented or omitted a material fact and was aware of the proper definition of the term material fact. At the conclusion of the evidentiary portion of the trial, defense counsel filed a motion for a judgment of acquittal, for which the only stated basis was the defendant s claim that the [s]tate [had] presented no evidence of which material fact or facts the defendant intentionally misrepresented, or intentionally failed to disclose, when making a claim for benefits. There is therefore no evidence for the jury to find an essential element of this charge: that she made an intentional misrepresentation or omission affecting her claim to benefits. At the hearing concerning that motion, defense counsel had argued that there was no way that the jury can evaluate whether [the defendant] made a misrepresentation or an omission of a material fact. Later, defense counsel further argued: [T]he state has to prove that [the defendant] said A, B, and C, but left out D, E, and F. And that had D, E, and F been disclosed, then the situation would have been different. In other words, they re material. (Emphasis added.) Defense counsel nonetheless acquiesced to a set of jury instructions under which, in contravention of the well settled definition of material fact, 3 that term was defined only as an important or essential fact . . . . Having based much of his case on contending that the defendant had not omitted any material fact, it defies logic to presume that defense counsel wanted the jury to have a less stringent definition of material fact before them as they deliberated. We are therefore left with two possible explanations for why defense counsel failed to object to the improper definition of material fact included in the jury charge: (1) gamesmanship, specifically, a desire to create a ground for appeal by building error into the trial; or (2) mere inadvertence. As I previously stated in State v. Kitchens, supra, 299 Conn. 522 (Katz, J., concurring), any defense attorney who made such a choice out of gamesmanship would be both incompetent and unethical incompetent because appellate court reversals of convictions based on Golding review of instructional errors are extremely rare,4 and unethical because, considering that low reversal rate and the fact that defendants may have to wait years to obtain appellate review, such a strategy would in no way serve the defendant s interests. Because this court is bound to presume that, in the absence of clear evidence to the contrary, attorneys act both ethically and competently; see id., 520 (Katz, J., concurring); State v. Cator, 256 Conn. 785, 794, 781 A.2d 285 (2001); I am compelled to conclude that defense counsel s failure to challenge the definition of materiality was merely inadvertent. Moreover, considering the in-depth discussion of the material fact element and the well established definition of a material fact, I would conclude that the trial court s failure to provide that definition similarly was inadvertent. Pursuant to the majority s decision, however, the defendant alone bears the consequence of a mistake that eluded both defense counsel and the trial court. Because Golding review was intended to provide an avenue for the review and correction of precisely the type of unintended mistake evident in this case, I cannot join the majority in foreclosing access to that review through a finding of waiver.5 Accordingly, I dissent. 1 Until the majority s recent evisceration of this doctrine, pursuant to Golding, a defendant could prevail on an unpreserved claim if: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. The first two Golding requirements involve whether the claim is reviewable, and the second two involve whether there was constitutional error requiring a new trial. (Internal quotation marks omitted.) State v. Tomas D., 296 Conn. 476, 503, 995 A.2d 583 (2010). 2 W. Shakespeare, Henry V, act 3, sc. 1. 3 See Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002) ( [a] material fact has been defined adequately and simply as a fact which will make a difference in the result of the case [internal quotation marks omitted]). 4 From January 1, 2000, to May 5, 2010, this court considered approximately 140 criminal appeals in which a defendant requested Golding review, not including cases in which the court determined that the defendant was entitled to other types of appellate review. Of those 140 cases, approximately 70 involved claims for Golding review of instructional errors, in which the court found reversible error in only 6 cases. During the same period, the Appellate Court considered approximately 550 criminal appeals in which a defendant requested Golding review or the court, sua sponte, engaged in Golding review, not including cases in which the court determined that another legal framework governed its review. Of those 550 cases, approximately 250 involved claims for Golding review of instructional error, and the court found reversible error in only 17 cases. State v. Kitchens, supra, 299 Conn. 522 n.17 (Katz, J., concurring). 5 The sole certified question on appeal is: Did the Appellate Court properly determine that the defendant had waived her claim of error regarding a jury instruction? State v. Mungroo, 291 Conn. 907, 969 A.2d 172 (2009). Accordingly, I decline to review the state s alternate ground for affirmance that it was not reasonably possible that the jury was misled by the improper definition of material fact. See State v. Hammond, 257 Conn. 610, 614 15 n.9, 778 A.2d 108 (2001) (declining to review alternate ground for affirmance that was not question certified for appeal). Instead, I would reverse the judgment of the Appellate Court and remand the case to that court for consideration of the defendant s claim pursuant to State v. Golding, supra, 213 Conn. 239 40.
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