Failure to file request to charge or to take exceptions can impact habeas corpus cases. You can learn more on this page.
Proposed jury instructions must occur in writing, see Practice Book § 42 -16, et seq., and should get filed by trial counsel pursuant to the 5th, 6th, 8th and 14th Amendments to the United States Constitution; In addition, Article First, §§ 8, 9 and 19 of the Connecticut Constitution; State v. Ortiz, 252 Conn. 533, 560-61 (2000)(“a defendant is entitled to have the jury correctly and adequately instructed on the pertinent principles of substantive law”); and State v. Casey, 201 Conn. 174, 178 (1986)(“A request to charge which is relevant to the issues of the case and which is an accurate statement of the law must be given”).
Exceptions, preferably in writing, to the Court’s anticipated charge, as well as objections to the prosecution’s proposed instructions, constitute requirements. Also see Practice Book § 42-16, et seq.; State v. Kitchens, 299 Conn. 447, 452 -500 (2011)(underscoring the need to file a written request to charge and to object or take exception to perceived instructional flaws); see also State v. Darryl W., 303 Conn. 353, 370 (2012) (must file request to charge or take exception to the charge); State v. Paige, 304 Conn. 426, 442 (2012)(same). In addition, all objections and exceptions should be placed on the record to ensure that the Court knows of the defendant’s position and that there exists an adequate record for appellate review. See Practice Book § 42-19 (requiring the charge conference to be on the record).
Also, the failure to file proposed jury instructions may deprive the jury and, hence, the defendant of a principle of law relevant to the outcome of the case and may foreclose review of the matter on appeal. In appropriate cases, the failure to file proposed jury instructions or to object or except to instructions given, will constitute deficient performance under Strickland, as there can exist no sound trial strategy for such failure. See generally J. Burkoff & N. Burkoff, Ineffective Assistance Of Counsel (2012 Ed.), § 7:46.
Lesser Included Offenses
As to lesser-included-offenses, “counsel’s failure to request a lesser included offense instruction does not necessarily deprive a defendant of reasonably effective assistance of counsel…It may be sound trial strategy not to request a lesser included offense instruction, hoping that the jury will simply return a not guilty verdict.” (Citations omitted) Fair v. Warden, 211 Conn. 398, 404 (1989); see Reeves v. Commissioner, 119 Conn. App. 852, 862, cert. denied, 962 Conn. 906 (2010).
However, there have been occasions when the failure was found to be deficient. Also see, e.g. Chace v. Bronson, 19 Conn. App. 674, 676, 681-85 (where defendant was charged and convicted of murder, counsel was deficient under Strickland for failing to request an instruction on second-degree manslaughter, as a lesser-included-offense of murder, but such failure did not prejudice the defendant), cert. denied, 213 Conn. 801 (1989).
If you are interested in habeas corpus, an attorney can help.