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KORTNER v. MARTISE—FIRST CONCURRENCE

PALMER, J., concurring. I agree with and join the

majority opinion except with respect to part II A of that

opinion. In particular, I disagree with the majority’s

analysis of the contention of the defendant, Craig L.

Martise, that the plaintiff, Mary H. Kortner, waived her

claim that ‘‘plaintiff’s exhibit 7’’ (exhibit 7) was improperly submitted to the jury. Contrary to the majority’s

conclusion concerning that claim, it is evident that the

plaintiff did, in fact, waive her right to raise the claim.

I do agree, however, with the majority’s determination

that the court clerk’s failure to inform the trial court

of the jurors’ concerns about exhibit 7 trumped the

plaintiff’s waiver because, if the clerk had informed the

court of those concerns, it would have been required

to remove exhibit 7 from the jurors’ consideration.1

With respect to the waiver issue, the majority asserts

that exhibit 7 was not properly admitted into evidence

in the first place because it ‘‘was never received into

evidence by the [court] and never published to the jury.’’

I do not necessarily agree with this conclusion, but, in

any event, a proper resolution of the waiver issue does

not hinge on the threshold admissibility of the exhibit.

In other words, whether an exhibit properly may be

admitted into evidence by agreement of the parties,

even when the exhibit was not published to the jury

during trial, is irrelevant to the issue presented by this

case. That issue is whether a party can waive his or

herright to claim that an exhibit was improperly submitted to the jury for purposes of its deliberations. I see

no reason why a party cannot do so, and the majority

provides no such reason.

In the present case, counsel for the plaintiff agreed

to have exhibit 7 marked as a full exhibit and expressly

informed the court that it should be submitted to the

jury. In such circumstances, the court was fully entitled

to submit exhibit 7 to the jury without taking any further

action or undertaking any additional inquiry. The fact

that the plaintiff’s counsel apparently made a mistake

in authorizing the court to submit the exhibit to the

jury is of no moment because the decisions and actions

of the plaintiff’s counsel are attributable to the plaintiff.

Indeed, even if it is assumed that the court, itself,

improperly submitted exhibit 7 to the jury, any such

error was induced by the plaintiff through her counsel,

and the plaintiff cannot now benefit from that induced

error. See, e.g., State v. Coward, 292 Conn. 296, 305,

972 A.2d 691 (2009) (this court will not review claims

of induced error even when claims are of constitutional magnitude).

It appears that the majority adopts a rule pursuant

to which a claim concerning the improper submission

of an exhibit to the jury is nonwaivable. I see absolutely
no justification for such a rule. In fact, counsel’s failure

to object to the submission of an exhibit to the jury is

not materially different from counsel’s failure to raise

an evidentiary claim at trial, and no such unpreserved

evidentiary claim may be raised on appeal because it

will be deemed to have been forfeited. Cf., e.g., Mozell

v. Commissioner of Correction, 291 Conn. 62, 70–71,

967 A.2d 41 (2009) (explaining distinction between

waiver and forfeiture). Moreover, even constitutional

rights are subject to waiver, which may be implied

rather than express. See, e.g., State v. Kitchens, 299

Conn. 447, 467–68, 482–83, 10 A.3d 942 (2011). In the

present case, the plaintiff’s counsel expressly informed

the court that exhibit 7 was a full exhibit that should

be submitted to the jury. There simply is no reason why

the plaintiff now should be permitted to claim that the

exhibit should not have been submitted to the jury;

the claim, rather, is barred by the waiver and induced

error doctrines.

As I have indicated, however, I believe that the court

clerk’s failure to inform the court of the jurors’ concerns

about exhibit 7 trumped counsel’s failure to take appropriate action to ensure that that exhibit was not submitted to the jury. Because I agree with the remainder of

the majority’s analysis, I concur in its judgment.

1 See footnote 9 of the majority opinion.