State v. McClain , 324 Conn. 802 ( 2017 )

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STATE OF CONNECTICUT v. TAJAH MCCLAIN
(SC 19532)
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and Robinson, Js.
Argued November 10, 2016—officially released March 14, 2017
Daniel J. Krisch, assigned counsel, for the appel-
lant (defendant).
Rocco A. Chiarenza, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, C. Robert Satti, Jr., supervisory assistant state’s
attorney, and Katherine Donoghue, deputy assistant
state’s attorney, for the appellee (state).
Opinion
ROBINSON, J. The principal issue in this certified
appeal is whether an implied waiver of a claim of
instructional error pursuant to State v. Kitchens, 299
Conn. 447, 482–83, 10 A.3d 942 (2011), precludes review
of that claim under the plain error doctrine. The defen-
dant, Tajah McClain, appeals, upon our grant of his
petition for certification,1 from the judgment of the
Appellate Court affirming the judgment of conviction,
rendered after a jury trial, of, inter alia, murder with a
firearm in violation of General Statutes §§ 53a-54a and
53-202k. See State v. McClain, 154 Conn. App. 281, 283,
105 A.3d 924 (2014). On appeal, the defendant contends
that the Appellate Court improperly determined that a
Kitchens waiver precluded plain error review of his
claim of instructional error because the implied acquies-
cence of counsel cannot waive an error of such magni-
tude. Further, the defendant claims that the trial court’s
failure to instruct the jury on consciousness of guilt
resulted in manifest injustice necessitating reversal
under the plain error doctrine. Although we agree with
the defendant that a Kitchens waiver does not necessar-
ily foreclose plain error review of that same claim, we
conclude that the trial court’s decision not to instruct
the jury on consciousness of guilt in the present case
was not plain error. Accordingly, we affirm the judg-
ment of the Appellate Court.
The record and the Appellate Court opinion reveal
the following facts and procedural history. The state
charged the defendant with, inter alia, murder with
a firearm in violation of §§ 53a-54a and 53-202k,2 in
connection with the shooting death of Eldwin Barrios.3
On the first day of his jury trial, ‘‘the court provided
counsel with a copy of the proposed jury instructions,
indicated it received requests to charge from both par-
ties, and stated it would review each accordingly. On
the sixth day of trial, the court and counsel discussed
the upcoming charge conference and issues relating to
the jury instructions. The state reminded the court that
it had requested a consciousness of guilt instruction.
. . . Defense counsel did not object to the state’s argu-
ments, and responded, ‘No, Your Honor,’ when the court
asked if there was anything further from either side
relating to the instructions.
‘‘On the next day of trial, the court stated that it
would not give the state’s requested instruction, pro-
vided counsel with a copy of the proposed instructions,
and asked if counsel were ready to proceed. Defense
counsel did not take exception to the court’s decision
not to charge on consciousness of guilt.
‘‘During its rebuttal case, the state introduced the
[defendant’s] uniform arrest report into evidence and
elicited testimony related thereto. Defense counsel did
not object. The state also elicited testimony that, three
months before the murder, the defendant stated he was
living on Wood Avenue in Bridgeport. Defense counsel
did not object. After the state rested its rebuttal case,
the court held a charge conference on the record. There
was no further discussion about the consciousness of
guilt instruction, and, when the court asked if there
was ‘[a]nything further on the instructions,’ defense
counsel responded, ‘No, Your Honor.’ ’’ (Footnote omit-
ted.) Id., 289–91.
The parties then gave closing arguments, during
which the prosecutor argued that a discrepancy
between two statements made by the defendant demon-
strated his consciousness of guilt. Specifically, the pros-
ecutor contrasted the information that the defendant
provided for the uniform arrest report that he was
homeless, with a statement that he gave to the police
with respect to an unrelated incident, that he had a
residential address on Wood Avenue. Defense counsel
did not object to this argument. After closing arguments,
the court instructed the jury, but did not include an
instruction on consciousness of guilt. The court then
asked the parties if they had any issues with the charge,
and both stated that they did not.
The jury found the defendant guilty of all charges.
The trial court then rendered a judgment of conviction
in accordance with the jury’s verdict and sentenced the
defendant to a total effective sentence of sixty-five years
incarceration. Id., 284.
The defendant then appealed from the judgment of
conviction claiming, inter alia, that the trial court’s fail-
ure to instruct on consciousness of guilt was manifestly
unjust, and that the judgment of conviction should be
reversed under the plain error doctrine. Id., 288–89. In
its decision, the Appellate Court relied on State v.
Rosado, 147 Conn. App. 688, 701–704, 83 A.3d 351, cert.
denied, 311 Conn. 928, 86 A.3d 1058 (2014), a case in
which that court declined to review the defendant’s
claim of plain error because it determined that defense
counsel waived review of the claim under State v. Kitch-
ens, supra, 299 Conn. 447, by raising no objection, and
affirmatively agreeing to, the court’s proposal to take
the jury’s verdict before responding to a jury note
requesting a clarifying instruction. See State v. McClain,
supra, 154 Conn. App. 292–93. The court reiterated the
statement in Rosado that a valid waiver precludes plain
error review because, ‘‘if there has been a valid waiver,
there is no error for us to correct.’’ (Internal quotation
marks omitted.) Id., 292. Applying the principles from
Rosado,4 the Appellate Court concluded that ‘‘the repre-
sentations of defense counsel reflected acquiescence
in the proposed jury instructions’’ because defense
counsel did not raise an objection to the state’s request
for the consciousness of guilt instruction or to the
court’s denial of the request, and when asked by the
court, represented that he had no concerns about the
charge. Id., 293. Accordingly, the Appellate Court held
that the defendant’s actions constituted a waiver under
Kitchens, which precluded plain error review. Id. This
certified appeal followed. See footnote 1 of this opinion.
Additional relevant facts will be set forth as necessary.
I
The first issue before us is whether a Kitchens waiver
forecloses plain error reversal. On appeal, the defendant
makes the policy argument that if a fundamental, mani-
fest injustice amounting to plain error exists in a case, it
does so regardless of whether counsel remained silent,
failed to object, or affirmatively stated that he had no
objection to the proposed jury instruction and, as such,
a defendant’s claim of plain error should not fail on the
basis of counsel’s implied acquiescence to the instruc-
tional error.
In response, the state argues that a Kitchens waiver
should foreclose relief under the plain error doctrine
because a Kitchens waiver encompasses an inference
that the defendant knowingly and voluntarily relin-
quished the right in question and, as such, that waiver
precludes a claim of plain error. The state then makes
the policy argument that permitting appellate review
of waived claims under the plain error doctrine would
invite an ambuscade of the trial courts, and would
encourage sandbagging by counsel at trial. Finally, the
state claims that it would be inconsistent with our
recent decision in State v. Bellamy, 323 Conn. 400, 147
A.3d 655 (2016), for us to conclude that a Kitchens
waiver precludes review of unpreserved constitutional
claims under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989), but permits appellate review of
claims of plain error. We agree with the defendant,
and conclude that a Kitchens waiver does not preclude
appellate relief under the plain error doctrine.
The question of whether a Kitchens waiver precludes
plain error review is one of law; thus, this court’s review
is plenary. Moye v. Commissioner of Correction, 316
Conn. 779, 784, 114 A.3d 925 (2015). To answer this
question requires a brief review of our recent waiver
jurisprudence. In Kitchens, we considered whether a
defendant was entitled to appellate review of his claim
of instructional error pursuant to State v. Golding,
supra, 213 Conn. 239–40,5 when defense counsel failed
to object or correct the given instruction. State v. Kitch-
ens, supra, 299 Conn. 462–63. The court reiterated that,
with respect to Golding and the concept of waiver,
‘‘[a] constitutional claim that has been waived does not
satisfy the third prong of the Golding test because, in
such circumstances, we simply cannot conclude that
injustice [has been] done to either party . . . or that
the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial . . . .’’ (Inter-
nal quotation marks omitted.) Id., 467.
The court then analyzed whether the defendant’s
claim had been waived under the third prong of Gold-
ing. Id., 468–73. In its discussion of the waiver doctrine
in Connecticut, the court explained that ‘‘[w]aiver is an
intentional relinquishment or abandonment of a known
right or privilege. . . . It involves the idea of assent,
and assent is an act of understanding. . . . The rule is
applicable that no one shall be permitted to deny that
he intended the natural consequences of his acts and
conduct. . . . In order to waive a claim of law . . .
[i]t is enough if he knows of the existence of the claim
and of its reasonably possible efficacy.’’ (Internal quota-
tion marks omitted.) Id., 469. Additionally, ‘‘Connecticut
courts have consistently held that when a party fails to
raise in the trial court the constitutional claim presented
on appeal and affirmatively acquiesces to the trial
court’s order, that party waives any such claim [under
Golding].’’ (Internal quotation marks omitted.) Id.
In determining whether counsel could impliedly
waive a claim of instructional error for purposes of
Golding, we considered the presumption of competent
counsel, in that an implied waiver may well signify a
strategic decision on the part of the attorney. Id., 489–
92. Accordingly, we concluded in Kitchens that allowing
counsel to claim instructional error once waived would
result in an ambuscade on the court, which could
encourage sandbagging in the future. Id., 470, 480. We
then established a framework under which we review
claims of waiver of instructional error, holding that:
‘‘[W]hen 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 coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal. Such a determination by the reviewing
court must be based on a close examination of the
record and the particular facts and circumstances of
each case.’’ Id., 482–83.6
More recently, in State v. Bellamy, supra, 323 Conn.
403, we reaffirmed the Kitchens waiver rule.7 In Bel-
lamy, the defendant claimed that the trial court’s
instruction on eyewitness identification witnesses was
deficient, and that the Appellate Court had incorrectly
concluded that he waived his claim of instructional
error. Id., 407–409. After determining that the defen-
dant’s instructional claim had been impliedly waived,
we considered whether to overturn the waiver rule in
Kitchens. Id., 410, 414. By a narrow margin, we declined
to do so. Id., 416, 423, 439. We began our discussion
‘‘by noting that this court adopted the waiver rule in
Kitchens in order to clarify the law and to encourage
the formation of accurate jury instructions consistent
with the principles of fundamental fairness and the
finality of judgments.’’ Id., 416. We held that the implied
waiver rule set forth in Kitchens was fair ‘‘because it
is based on the presumption that counsel was aware
of, and rejected as a matter of trial strategy, every
conceivable challenge to the jury instructions.’’
(Emphasis added.) Id., 417. We further reaffirmed the
four policy grounds upon which the court in Kitchens
relied, including ‘‘(1) the presumption that counsel is
competent, (2) the rules of practice that provide for
counsel’s participation in the crafting of instructions,
(3) the rules of fairness that place responsibility with
the trial court and counsel to ensure that the instruc-
tions are correct, and (4) the existence of habeas review
as a potential safety net.’’ Id., 423.
We note that it is undisputed that defense counsel’s
actions in the present case constituted a Kitchens
waiver. See State v. McClain, supra, 154 Conn. App.
289–93. Nevertheless, the nature of the plain error doc-
trine illustrates why a Kitchens waiver does not pre-
clude plain error review. ‘‘An appellate court addressing
a claim of plain error first must determine if the error
is indeed plain in the sense that it is patent [or] readily
[discernible] on the face of a factually adequate record,
[and] also . . . obvious in the sense of not debatable.
. . . This determination clearly requires a review of
the plain error claim presented in light of the record.
Although a complete record and an obvious error are
prerequisites for plain error review, they are not, of
themselves, sufficient for its application.’’ (Internal quo-
tation marks omitted.) State v. Jamison, 320 Conn. 589,
596, 134 A.3d 560 (2016). ‘‘[T]he plain error doctrine is
reserved for truly extraordinary situations [in which]
the existence of the error is so obvious that it affects
the fairness and integrity of and public confidence in
the judicial proceedings.’’ (Internal quotation marks
omitted.) State v. Myers, 290 Conn. 278, 289, 963 A.2d
11 (2009). ‘‘[I]n addition to examining the patent nature
of the error, the reviewing court must examine that
error for the grievousness of its consequences in order
to determine whether reversal under the plain error
doctrine is appropriate. A party cannot prevail under
plain error unless it has demonstrated that the failure
to grant relief will result in manifest injustice. . . .
[Previously], we described the two-pronged nature of
the plain error doctrine: [An appellant] cannot prevail
under [the plain error doctrine] . . . unless he demon-
strates that the claimed error is both so clear and so
harmful that a failure to reverse the judgment would
result in manifest injustice.’’8 (Citation omitted; empha-
sis in original; internal quotation marks omitted.) State
v. Jamison, supra, 596–97.
It is axiomatic that, ‘‘[t]he plain error doctrine . . .
is not . . . a rule of reviewability. It is a rule of revers-
ibility. That is, it is a doctrine that this court invokes
in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in
the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy.’’ (Internal
quotation marks omitted.) State v. Ruocco, 322 Conn.
796, 803, 144 A.3d 354 (2016). Put another way, plain
error review is reserved for only the most egregious
errors. When an error of such a magnitude exists, it
necessitates reversal. See id. (failure to give statutorily
mandated instruction is plain error); see also, e.g.,
Mueller v. Tepler, 312 Conn. 631, 645–46, 95 A.3d 1011(2014) (plain error for Appellate Court to affirm judg-
ment of trial court granting motion to strike on alterna-
tive ground rather than remanding to afford party
opportunity to amend pleading); Ajadi v. Commis-
sioner of Correction, 280 Conn. 514, 522–25, 911 A.2d
712 (2006) (failure of trial judge to remove himself from
presiding over defendant’s habeas petition plain error
when judge had represented defendant at his guilty
plea); Belcher v. State, 99 Conn. App. 353, 354–58, 913
A.2d 1117 (2007) (judge’s failure to disqualify himself
based on his appearance as counsel on brief filed on
behalf of defendant on direct appeal was plain error);
State v. Cotton, 69 Conn. App. 505, 506, 794 A.2d 1116(2002) (complete failure to instruct jury as to meaning
of term ‘‘drug dependency’’ is plain error); State v. Hair,
68 Conn. App. 695, 706, 792 A.2d 179 (plain error for
court to instruct jury on offense with which defendant
was not charged and then accept jury’s guilty verdict
for offense on which jury had not been instructed),
cert. denied, 260 Conn. 925, 797 A.2d 522 (2002); State
v. Thornton, 55 Conn. App. 28, 33–34, 739 A.2d 271(1999) (plain error to require defendant to pay money
into fund for future treatment or counseling of victim,
as special condition of probation).
In contrast, however, Golding review is a rule of
reviewability, focused not on the magnitude of the error,
but rather, on the type of error alleged, with the ultimate
goal of determining whether the court may review such
error.9 State v. Golding, supra, 213 Conn. 239–40 (review
of unpreserved claim only when ‘‘the claim is of consti-
tutional magnitude alleging the violation of a fundamen-
tal right’’). Reversal is secondary upon the
demonstrating of a harmful error. Additionally, the pre-
sumption of competent counsel upon which the waiver
rule in Kitchens relies is inapplicable to plain error
review—there simply is no reason why competent coun-
sel would intentionally relinquish the right to review
an error dire enough to be contemplated by the plain
error rule. Thus, the policy behind the waiver rule in
Kitchens is inapposite in the context of claims of plain
error and, as such, a Kitchens waiver does not foreclose
claims of plain error. Accordingly, the Appellate Court
improperly held that a Kitchens waiver foreclosed
review of a plain error claim.10
II
We next consider whether the trial court’s decision
not to give a consciousness of guilt instruction in the
present case constitutes plain error requiring reversal.11
The defendant contends that it was plain error for the
trial court not to instruct the jury on consciousness of
guilt, when there was a factual basis for applicability
of that doctrine. The defendant argues that, because
the state offered evidence on consciousness of guilt
and argued that concept to the jury to discredit the
defendant’s sole defense of alibi, the jury needed
instruction on the doctrine in order to apply it to the
facts of the case. Relying on the complexities of the
doctrine of consciousness of guilt, the defendant claims
that without the instruction, the jury heard an incom-
plete and inaccurate discussion of the doctrine. Finally,
the defendant contends that there is no assurance that
the trial court’s error was harmless in light of the weak-
ness of the state’s case.
In response, the state relies on Appellate Court
authority holding that a claim of error in a conscious-
ness of guilt instruction does not warrant plain error
review. See, e.g., State v. Houle, 105 Conn. App. 813,
821, 940 A.2d 836 (2008). It contends, in the alternative,
that even if the failure to give a consciousness of guilt
instruction warrants plain error review, such failure is
not so clear and obvious an error as to be beyond debate
because, in most cases, it is the defendant who would
benefit from a court’s failure to give such an instruction,
as the instruction typically emphasizes a defendant’s
false statements to the police. Further, the state claims
that the defendant has not demonstrated that the failure
to give the instruction constituted a manifest injustice
requiring plain error reversal because he failed to
explain why the alleged error constituted a ‘‘truly
extraordinary’’ situation, given that the only reference
to the consciousness of guilt doctrine was a single com-
ment in the prosecutor’s closing argument, to which
the defendant did not object. See State v. Myers, supra,290 Conn. 289. Finally, relying on this court’s decision
in State v. Payne, 303 Conn. 538, 565–66, 34 A.3d 370(2012), the state argues that if the situation in Payne—
in which a prosecutor suggested consciousness of guilt
in violation of an order from the court—did not require
reversal, then certainly, the present facts before us do
not require plain error reversal. We agree with the state.
We turn to the first prong of the plain error doctrine,
namely, whether the trial court’s decision not to give
a consciousness of guilt instruction, is so clear an error
that a failure to reverse the judgment would result in
manifest injustice. See, e.g., State v. Jamison, supra,
320 Conn. 596–97. The record reveals the following
additional relevant facts. On the sixth day of trial, the
trial court asked both parties if they had any issues
relating to the jury instructions. See State v. McClain,
supra, 154 Conn. App. 289. The state indicated to the
court that its request for a consciousness of guilt
instruction was based on the following: (1) the uniform
arrest report, which indicated that the defendant had
stated to police shortly after the murder that he was
homeless; (2) testimony from a police officer, Detective
Keith Bryant, indicating that the defendant had
informed police that he was living on Wood Avenue
approximately three months before the murder; and (3)
the testimony of the defendant’s alibi witness, his sister,
stating that the defendant lived with her at 430 Ogden
Street in Bridgeport for six months prior to, and on the
night of, the murder. Id., 289–90.
On the following day of trial, the trial court held a
charge conference on the record. Id., 290. After consid-
ering the state’s request for a consciousness of guilt
instruction, the trial court declined to give the instruc-
tion, stating that, it understood the state’s argument to
be that the information provided in the uniform arrest
report was false, but the court believed that information
was not information necessarily related to the events
under investigation. As such, because the allegedly false
information was subject to interpretation, the court
declined to give an instruction describing such interpre-
tations. The defendant did not object.
During the state’s rebuttal case, it introduced into
evidence the defendant’s uniform arrest report, in
which the defendant had stated that he was homeless
when he was arrested three days after the murder. Id.The state also called Detective Bryant, who testified
that the defendant told him on March 4, 2010, just three
months prior to the murder, that he lived on Wood
Avenue. Id. After the close of evidence, the trial court
held another charge conference on the record. Id. The
trial court reviewed with the parties the changes it had
made to the instructions, which did not include the
state’s requested consciousness of guilt instruction. Id.The defendant did not raise any concerns about the
need for an instruction on consciousness of guilt. Id.,290–91. At the end of the charge conference, both par-
ties stated that they had no further concerns with the
instructions. Id.During closing arguments, with respect to conscious-
ness of guilt, the state argued the following: ‘‘The defen-
dant is arrested for a crime, and you’ll see [in] the
[uniform arrest report] that you have, what he was
arrested for; it was a murder. And at the time that he’s
arrested, he tells the police that he was homeless. Now,
why would he tell the police he was homeless; you have
a right to consider that. Can you use that as circumstan-
tial evidence of a consciousness of guilt. Think about
it. If I tell them I’m living at 430 Ogden Street, they’re
gonna be able to go over and find out the truth in this
case. If you’re thinking about this yourself; just yourself
thinking about things. [The defendant] gets shot at on
[March 4, 2010] . . . [a]nd he says, I live [on] Wood
Avenue . . . . What’s the import of that; well, [the
defendant’s sister said] that the defendant lived at [430]
Ogden Street.’’ After closing arguments, the trial court
instructed the jury on the applicable law, but did not
include an instruction on consciousness of guilt. State
v. McClain, supra, 154 Conn. App. 291. The court then
asked the parties whether they had any issues with the
charge, and both stated that they did not. Id.The defendant’s claim asserts, somewhat paradoxi-
cally, that he suffered manifest injustice because the
trial court omitted an instruction that ordinarily is
sought by the state and opposed by the defendant. A
consciousness of guilt instruction is intended to draw
the jury’s attention to indirect evidence of the defen-
dant’s guilt, including, for example, false statements
made to the police.12 See Connecticut Criminal Jury
Instructions (4th Ed. 2008) § 2.6-3, available at http://
www.jud.ct.gov/ji/criminal/Criminal.pdf (last visited
March 1, 2017) (pattern instruction). The instruction
then permits the jury to infer from the evidence that
the defendant was acting from a guilty conscience. Id.
Tellingly, the pattern jury instruction on consciousness
of guilt states in part that: ‘‘In any criminal trial it is
permissible for the state to show that conduct or state-
ments made by a defendant after the time of the alleged
offense may have been influenced by the criminal act;
that is, the conduct or statements show a consciousness
of guilt. . . . The state claims that the following con-
duct is evidence of consciousness of guilt . . . .’’ (Foot-
notes omitted.) Id. Thus, the pattern instruction
anticipates the state, not a defendant, pursuing a con-
sciousness of guilt instruction.
Contrary to the defendant’s position that the trial
court’s decision not to instruct on consciousness of
guilt was manifestly unjust, in challenging a trial court’s
consciousness of guilt instruction, defendants often
contend that the instruction is improper because it
improperly shifts the burden of proof from the state to
the defendant; State v. Banks, 194 Conn. 617, 622, 484
A.2d 444 (1984); and inserts the court’s imprimatur on
the state’s version of the events. State v. Johnson, 288
Conn. 236, 285, 951 A.2d 1257 (2008). As such, defen-
dants typically object to a consciousness of guilt
instruction because the instruction is detrimental to
their credibility and, ultimately, to their case.
Additionally, ‘‘[t]he decision to give a consciousness
of guilt instruction is left to the sound discretion of the
trial court.’’ State v. Hinds, 86 Conn. App. 557, 565, 861
A.2d 1219 (2004), cert. denied, 273 Conn. 915, 871 A.2d
372 (2005); see also, e.g., State v. Banks, supra, 194
Conn. 622. Although we cannot foreclose the possibility
that a trial court’s failure to exercise its discretion to
give a requested, but not required, instruction could
rise to the level of plain error, we observe that the fact
that the decision is discretionary makes that eventuality
less likely.13 Given the typicality of the state pursuing
a consciousness of guilt instruction and the potential
benefits to the defendant from the trial court’s decision
not to give the instruction, the trial court’s decision in
the present case is not so clearly and obviously an
error that it undermines the integrity and fairness of
the judicial proceeding necessitating reversal.14 Accord-
ingly, we conclude that the trial court’s decision not
to provide the instruction on consciousness of guilt,
requested by the state, was not plain error requiring
reversal.
The judgment of the Appellate Court is affirmed.
In this opinion the other justices concurred.
1
We initially granted the defendant’s petition for certification to appeal
limited to the following question: ‘‘Did the Appellate Court properly deter-
mine that an implied waiver of a claim of instructional error that satisfies
State v. Kitchens, [supra, 299 Conn. 447], also forecloses plain error review?’’
State v. McClain, 319 Conn. 902, 122 A.3d 637 (2015). We subsequently
granted the defendant’s motion to add the following certified question: ‘‘If
the answer to [the first question is] ‘no,’ was the trial court’s failure to
instruct the jury on consciousness of guilt plain error requiring reversal of
the judgment?’’
We note that the Appellate Court did not reach the merits of this issue,
however, because it affirmed the judgment of the trial court on the ground
that an implied waiver of a claim of instructional error under Kitchens also
forecloses plain error review. We granted the defendant’s motion to modify
the certified question in the interest of judicial economy in order to avoid
an unnecessary remand of a single issue appeal to the Appellate Court.
2
The state also charged the defendant with assault in the first degree
with a firearm in violation of General Statutes §§ 53a-59 (a) (5) and 53-202k,
and carrying a pistol without a permit in violation of General Statutes § 29-
35 (a). See State v. McClain, supra, 154 Conn. App. 283.
3
For a detailed recitation of the facts underlying this murder charge, see
State v. McClain, supra, 154 Conn. App. 283–84.
4
The defendant’s appeal from the trial court’s judgment of conviction
was originally filed in this court. State v. McClain, supra, 154 Conn. App.
292 n.4. Following an order of this court transferring the case to the Appellate
Court pursuant to Practice Book § 65-1, the defendant filed a motion
requesting that the Appellate Court hear that appeal en banc ‘‘because the
court would need to overrule Rosado [in order to] reverse the judgment for
plain error.’’ Id. We note that the Appellate Court denied that request. Id.
5
Under Golding, it is well settled that a defendant may prevail on an
unpreserved claim when: ‘‘(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 . . .
exists and . . . 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.’’ (Footnote
omitted.) State v. Golding, supra, 213 Conn. 239–40; see In re Yasiel R., 317
Conn. 773, 781, 120 A.3d 1188 (2015) (modifying third prong of Golding).
6
In adopting the standard set forth in Kitchens, we relied on, inter alia,
‘‘the widely recognized presumption that counsel is competent and capable
of acting on behalf of the defendant in matters concerning trial management,
including waiver of the defendant’s right to challenge a jury instruction
. . . .’’ State v. Kitchens, supra, 299 Conn. 486–88. To that end, we concluded
‘‘first, that trial courts expect significant participation by counsel in formulat-
ing jury instructions because there would be no reason for our rules to
provide such guidance if little or no participation was anticipated. We also
conclude[d] that competent counsel, being cognizant of our rules, is aware
that there are multiple opportunities to request specific instructions, that
exceptions or objections to the instructions proposed or given may be taken
or raised at various times, and that a charge conference may be requested
to consider the instructions and any changes or modifications thereto that
counsel deems necessary to ensure that they are correct. Accordingly,
reviewing courts in Connecticut have good reason to conclude that counsel
knowingly and intentionally waived the right to challenge a jury instruction
when the trial court has provided the parties with a meaningful opportunity
to review and discuss the instructions, to request changes or modifications
before and after the instructions are given, and to comment on the instruc-
tions while there is still time to correct them.’’ (Emphasis in original.) Id., 494.
7
Although the main question before us in Bellamy was whether to overrule
Kitchens, justices in the majority and concurring opinions noted the uncer-
tainty in the law as to whether a Kitchens waiver precludes plain error
review, but left that question for another day. See State v. Bellamy, supra,
323 Conn. 433 n.22; see also, id., 458 n.6 (Rogers, C. J., concurring).
8
The defendant also argues that, because Connecticut modeled the plain
error doctrine codified in Practice Book § 60-5 on the federal plain error
rule, federal cases are persuasive in this context. According to the defendant,
the rule embraced by the Appellate Court—that trial counsel’s acquiescence
waives review for plain error—is followed by only a minority of jurisdictions.
He explains that most federal courts of appeal refuse to find waiver of
instructional plain error on the basis of a defendant’s failure to object to a
court’s proposed jury instruction, or even on the basis of counsel’s affirma-
tive statement of no objection to the proposed instruction. Additionally, the
defendant relies on the United States Supreme Court decision in United
States v. Olano, 507 U.S. 725, 732–35, 113 S. Ct. 1770, 123 L. Ed. 2d 508(1993), for the proposition that a defendant only waives his right to claim
plain error when he does so purposefully and freely, and as such, an implied
Kitchens waiver should not preclude his claim of plain error.
In response, the state claims that United States v. Olano, supra, 507
U.S. 725, stands for the proposition that if a defendant has intentionally
relinquished or abandoned a known right, he is barred from seeking reversal
under the plain error doctrine and, as such, because Kitchens treats implicit
and express waivers in the same manner, a valid, implied Kitchens waiver
forecloses claims of plain error.
As we explain subsequently, federal case law is inapposite and unpersua-
sive on the basis of the fundamental differences between the federal and state
plain error and waiver doctrines. Specifically, although we acknowledge the
federal case law cited by both parties, we find it unpersuasive because of
the fundamental differences between federal case law and post-Kitchens
case law in the context of reviewing unpreserved claims. Under federal law,
‘‘an appellate court may, in its discretion, correct an error not raised at
trial only where the appellant demonstrates that (1) there is an error; (2)
the error is clear or obvious, rather than subject to reasonable dispute; (3)
the error affected the appellant’s substantial rights, which in the ordinary
case means it affected the outcome of the district court proceedings; and
(4) the error seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.’’ (Emphasis added; internal quotation marks omitted.)
United States v. Marcus, 560 U.S. 258, 262, 130 S. Ct. 2159, 176 L. Ed. 2d
1012 (2010). By contrast, however, Connecticut’s plain error doctrine is a
rule of reversibility, mandating reversal when plain error is found. See State
v. Sanchez, 308 Conn. 64, 78–81, 60 A.3d 271 (2013) (overruling previous
case law that applied abuse of discretion standard when reviewing Appellate
Court’s decision whether to reverse judgment under plain error doctrine
because plain error review is not discretionary).
Additionally, federal courts do not recognize the concept of implied
waiver, in that counsel’s acquiescence cannot constitute a waiver. See, e.g.,
United States v. Ramirez-Castillo, 748 F.3d 205, 212 (4th Cir. 2014); United
States v. Harris, 695 F.3d 1125, 1130 n.4 (10th Cir. 2012); United States v.
Brown, 352 F.3d 654, 663 and n.8 (2d Cir. 2003); United States v. Dennis,
271 F.3d 71, 73 (2d Cir. 2001). This is in stark contrast to our implied waiver
rule in Kitchens, recently reaffirmed in State v. Bellamy, supra, 323 Conn.
416, 423, 439, in which we held that counsel’s acquiescence can in some
instances constitute a waiver. Accordingly, because federal courts do not
recognize the concept of implied waiver at all, they are inapposite to our
post-Kitchens waiver case law and the present case.
9
Because plain error review is fundamentally different from Golding
review, we are unpersuaded by the state’s argument that it would be inconsis-
tent for this court to conclude that a Kitchens waiver precludes Golding
review, but permits claims of plain error.
10
In its decision in the present case, the Appellate Court extensively relied
on State v. Rosado, supra, 147 Conn. App. 688. See State v. McClain, supra,
154 Conn. App. 291–93. To the extent that State v. Rosado, supra, 704, holds
that a Kitchens waiver precludes claims of plain error, we overrule it.
11
See footnote 1 of this opinion.
12
Few instances have arisen before this court in which it was the defendant
challenging the trial court’s failure to give a consciousness of guilt instruc-
tion. See, e.g., State v. Shannon, 212 Conn. 387, 409, 563 A.2d 646 (defendant
claimed trial court should have given consciousness of guilt instruction
because consciousness of guilt evidence implicated third party), cert. denied,
493 U.S. 980, 110 S. Ct. 510, 107 L. Ed. 2d 512 (1989).
13
This is in stark contrast to State v. Ruocco, supra, 322 Conn. 796, a case
relied upon by the defendant at oral argument and brought to our attention
after briefing pursuant to Practice Book § 67-10 for the proposition that it
was plain error for the trial court not to give the consciousness of guilt
instruction. We are unpersuaded. Contrary to the present case, in Ruocco,
the instruction at issue was an adverse inference instruction, which pertained
to the defendant’s fundamental right not to testify at trial, and the jury’s
subsequent responsibility not to draw any adverse inference’s from the
defendant’s decision not to testify. Id., 801. Such instructions are mandatory
pursuant to General Statutes § 54-84 (b), as opposed to consciousness of
guilt instructions, which are discretionary. Whereas the trial court’s failure
to give a mandatory instruction in Ruocco was an obvious error, on its face,
satisfying the first prong of the plain error doctrine, the same cannot be
true of the present case. Thus, Ruocco is inapposite to the present case.
Here, because the decision whether to give the consciousness of guilt
instruction is discretionary, it follows that the trial court’s decision not to
give the instruction was not so obvious an error that it was not debatable,
resulting in plain error necessitating reversal. We leave for another day the
question of whether a trial court’s exercise of its discretion to give that
charge ever can amount to plain error—that is, an error so obvious on its
face that it is undebatable.
14
Although the defendant claims that without the pattern instruction, the
jury heard an incomplete and inaccurate discussion of the doctrine, we
disagree. As noted previously in this opinion, it is within the discretion of
the trial court to determine whether to instruct the jury on consciousness
of guilt, and given the likely potential benefits to the defendant from the
court declining to give this instruction requested by the state, we find this
argument to be unavailing.