• Connecticut Appellate Court
  • Connecticut Appellate Court
  • AC 33357
  • Dec 18 2012 (Date Decided)
  • Per Curiam

In the 2011 case of State v. Kitchens, the Connecticut Supreme Court held that "when the trial court provides counsel with a copy of the proposed jury instructions, allows a meaningful opportunity for their review, solicits comments from counsel regarding changes or modifications and counsel affirmatively accepts the instructions proposed or given, the defendant may be deemed to have knowledge of any potential flaws therein and to have waived implicitly the constitutional right to challenge the instructions on direct appeal." Todd Romanko was convicted following a jury trial of operating a motor vehicle while under the influence of intoxicating liquor or drugs or both in violation of C.G.S. §14-227a(a)(1). Romanko appealed claiming, first, that the court's jury instructions improperly enlarged the scope of the charge against him. The Appellate Court affirmed the judgment. The defendant claimed that the court's instructions that the jury could find him guilty under C.G.S. §14-227a(a)(1) if it was found that he was under the influence of "alcohol or drugs or both" improperly enlarged the scope of the charge against him because the state's long form information had charged him with driving under the influence of "alcohol and drugs." He contended that this deprived him of his constitutional right to a unanimous verdict. The Appellate Court concluded that the defendant had waived the claims under Kitchens and declined review. Defense counsel was given a written copy of the proposed jury instructions the night before the instructions were given. The following day he twice responded to the court's questions that he did not have any changes or suggestions to the proposed instructions. The defendant next contended that the trial court violated his constitutional right to present a defense by not allowing him to introduce certain demonstrative evidence. The defendant testified that he badly injured his knee in an accident and was unable to perform properly two tests. Defense counsel sought to have the defendant perform the "heel to toe" and "one leg stand" tests for the jury. The court denied the request reasoning that it would be inappropriate for the defendant to demonstrate what he thought occurred on the night in question. The Appellate Court concluded that the trial court did not abuse its discretion in ruling that such demonstrative evidence was unreliable.