The Connecticut Supreme Court released an opinion in State v. Fabricatore [.pdf file] yesterday, furthering the maddening jurisprudence that attorneys can “waive” constitutional rights of defendants. In Fabricatore, the defendant was challenging the trial court’s instruction to the jury that the “duty to retreat” applied in cases where deadly force was not an issue. The claim was unpreserved and the Appellate Court review the claim under State v. Golding, because it was of constitutional magnitude.

The Supreme Court granted cert but affirmed the conviction on the grounds that the defendant had “waived” any challenge to the instruction by expressing “his” satisfaction with the instruction given.

After the jury had left the courtroom, the prosecutor requested the court add to the self-defense instruction language indicating that, if the jury found the defendant was the initial aggressor, the defense of self-defense would no longer be available to the defendant pursuant to § 53a-19 (c). When the court asked defense counsel if he had any objections to that addition to the charge, defense counsel objected, stating twice that the selfdefense instruction already had been given as he had requested, and once that he was ‘‘satisfied’’ with the self-defense instruction.

The Court then proceeds to engage in the Golding analysis of whether the claim should be reviewed. After reviewing the first two prongs, it decides that it is reviewable. The Court then says that if we were to review the merits of the claim, it still fails,

In the present case, defense counsel not only failed to object to the instruction as given or to the state’s original request to charge the jury with the duty to retreat, but clearly expressed his satisfaction with that instruction, and in fact subsequently argued that the instruction as given was proper.Indeed, defense counsel himself addressed the duty to retreat in his own summation.Thus, the defendant accepted the duty to retreat theory presented by the prosecutor, and openly acquiesced at trial, thereby waiving his right to challenge the instruction on appeal. Under this factual situation, we simply cannot conclude that ‘‘injustice [has been] done to either party’’; (internal quotation marks omitted) State v. Whitford, supra, 260 Conn. 620; or that ‘‘the alleged constitutional violation clearly exists and clearly deprived the defendant of a fair trial . . . .’’State v. Golding, supra, 213 Conn. 240. Moreover, our decision in the present case, concluding that unpreserved, waived claims, fail under the third prong of Golding, is consistent with our decisions declining to review claims of induced error. In State v. Cruz, 269 Conn. 97, 106, 848 A.2d 445 (2004), we quoted Cooper in concluding that Golding review is inapplicable to an unpreserved claim of induced error18 because ‘‘[t]o allow [a] defendant to seek reversal now that his trial strategy has failed would amount to allowing him to induce potentially harmful error, and then ambush the state [and the trial court] with that claim on appeal.’’

So while recognizing that the instruction was improper, the defendant could not get relief because his attorney had acquiesced in the instruction.

I’m pretty sure the defendant knew exactly what the outcome of his attorney’s actions were and he agreed too.

What this does, which is infinitely more interesting, is that it sets up an odd discrepancy in the law of Golding review. If trial counsel is quiet at trial and makes an error of Constitutional magnitude, review (and most likely relief) will be granted. However, if trial counsel affirmatively makes an error of Constitutional magnitude, the defendant gets nothing.

Mr. Fabricatore, of course, can file a Petition for Writ of Habeas Corpus (and I’m pretty sure he will), but the chances of succeeding are close to zero and good luck proving prejudice.

Mr. Fabricatore was represented by Todd Bussert, who I think browses the blawgosphere, so if you’re out there, leave your impressions of the case!