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STATE v. RUOCCO—DISSENT

ESPINOSA, J., with whom ROBINSON, J., joins, dissenting. I respectfully disagree with the decision of the

majority to affirm the judgment of the Appellate Court,

which reversed the judgment of conviction of the defendant, Dustin Ruocco, on the ground that the trial court

committed plain error by failing to instruct the jury, as

mandated by General Statutes § 54-84 (b),1

that it may

draw no unfavorable inferences from the defendant’s

failure to testify at his trial on charges of burglary in

the third degree and larceny in the third degree. State

v. Ruocco, 151 Conn. App. 732, 738–39, 95 A.3d 573

(2014). Specifically, I would overrule the Appellate

Court’s decision in State v. Suplicki, 33 Conn. App. 126,

130–31, 634 A.2d 1179 (1993), cert. denied, 229 Conn.

920, 642 A.2d 1216 (1994), which held that the complete

failure to provide the instruction required by § 54-84

(b) is per se plain error that requires reversal. I further

conclude that the trial court’s failure to instruct under

§ 54-84 (b) was harmless error, meaning that the record

fails to reveal the manifest injustice necessary for plain

error reversal. Because I would reverse the judgment

of the Appellate Court, I respectfully dissent.

I

I begin with the state’s claim, not reached by the

majority, that the Appellate Court improperly concluded that a new trial is required when there is a

complete failure by the trial court to provide the instruction mandated by § 54-84 (b).2 The state argues that the

Appellate Court’s decision in State v. Suplicki, supra,

33 Conn. App. 130–31, which was controlling on this

point,3

is wrongly decided because it improperly

equated ‘‘plain error’’ with ‘‘structural error’’ in

determining that the constitutional nature of the right

protected by § 54-84 (b) requires a new trial in all cases.

The state contends that requiring reversal without considering whether the failure to instruct was harmful is

inconsistent with both:(1)the two-pronged test governing the plain error doctrine, which requires an assessment of whether the record demonstrates the presence

of ‘‘manifest injustice’’; and (2) the prevailing body of

case law holding that trial courts’ failures to provide

‘‘no adverse inference’’ instructions under Carter v.

Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d

241 (1981), are amenable to harmless error review. In

response, the defendant contends that the ‘‘stringent

instructional language’’ of § 54-84 (b) represents a legislative judgment that ‘‘the mandated instruction is an

unquantifiable impropriety that casts doubt on the fairness of the entire trial,’’ and that the manifest injustice

prong of the plain error test ‘‘is simply met per se under

the statute whenever omission is total as opposed to

partial.’’ Relying on State v. Burke, 182 Conn. 330, 438
A.2d 93 (1980), and dicta from this court’s decision in

State v. Sinclair, 197 Conn. 574, 586, 500 A.2d 539

(1985), the defendant contends that Suplicki remains

good law. I agree, however, with the state, and conclude

that failure to provide the no adverse inference instruction mandated by § 54-84 (b) does not require reversal

in the absence of manifestinjustice in the form of constitutional harm resulting from the infringement of the

defendant’s fifth amendment privilege against selfincrimination.

Determination of a remedy for a statutory violation

presents a question of statutory interpretation over

which our review is plenary. See Ulbrich v. Groth, 310

Conn. 375, 448, 78 A.3d 76 (2013); cf. State v. Heredia,

310 Conn. 742, 754–57, 81 A.3d 1163 (2013) (deciding

as question of statutory interpretation whether Practice

Book § 37-12 [a] requires release of defendant when

probable cause determination not made within fortyeight hours of arrest). It is well settled that we interpret

statutes in accordance with the plain meaning rule set

forth in General Statutes § 1-2z. See, e.g., State v. Heredia, supra, 756–57.

The statutory language atissue in this appeal provides

in relevant part: ‘‘Unless the accused requests otherwise, the court shall instruct the jury that they may draw

no unfavorable inferences from the accused’s failure to

testify. . . .’’ General Statutes § 54-84 (b). The statute,

however, does not set forth a specific appellate remedy

for a trial court’s complete failure to give the mandatory

‘‘no adverse inference’’ instruction, and, in particular,

whether a trial court’s failure to administer the prescribed instruction requires reversal in all cases. In

‘‘interpreting [statutory] language . . . we do not write

on a clean slate, but are bound by our previous judicial

interpretations of this language and the purpose of the

statute.’’ (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom ofInformationCommission, 312 Conn. 513, 527, 93 A.3d 1142 (2014). Thus,

I turn first to prior judicial interpretations of § 54-84

(b), in particular, the Appellate Court’s controlling decision on this point in State v. Suplicki, supra, 33 Conn.

App. 126. See footnote 3 of this dissenting opinion.

Observing that this court had left the question open in

State v. Sinclair, supra, 197 Conn. 585–86, the Appellate

Court held in Suplicki ‘‘that the total omission of the

‘no adverse inference’ instruction is plain error that is

not subject to a harmless error analysis. The unconditional language of the statute is a legislative mandate

and the failure to use that language is a pivotal aspect

of the defendant’s privilege against self-incrimination.

The statutory language is based on a constitutional

right, and its omission can never be harmless.’’4 State

v. Suplicki, supra, 33 Conn. App. 130. In so concluding,

the Appellate Court did not cite the language or legislative history of § 54-84 (b), but, rather, relied on a string
citation to four federal and state cases. See id., 130–31.

A brief review of those cases demonstrates, however,

that they do not support the proposition for which the

Appellate Court cited them, most notably the two

United States Supreme Court decisions, both of which

embrace harmless error review for significant constitutional errors. See Arizona v. Fulminante, 499 U.S. 279,

310, 111 S. Ct. 1246, 113 L. Ed. 2d 302 (1991) (admission

of involuntary confession subject to harmless error

review); Rose v. Clark, 478 U.S. 570, 579–80, 106 S. Ct.

3101, 92 L. Ed. 2d 460 (1986) (instruction improperly

shifting burden of proof on malice subject to harmless

error review). The Appellate Court’s reliance in

Suplicki on its decisions in State v. Hamilton, 30 Conn.

App. 68, 76–78, 618 A.2d 1372 (1993), aff’d, 228 Conn.

234, 636 A.2d 760 (1994), and State v. Payne, 12 Conn.

App. 408, 413–15, 530 A.2d 1110 (1987), which held

that the trial court’s complete failure to instruct on an

essential element of the charged offense was not subject

to harmless error review; State v. Suplicki, supra, 131;

is now unpersuasive because that pair of cases is wholly

inconsistent with the United States Supreme Court’s

subsequent decision in Neder v. United States, 527 U.S.

1, 15, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999), which

concluded that ‘‘the omission of an element is an error

that is subject to harmless-error analysis . . . .’’

The Appellate Court’s error in Suplicki, however,

is understandable when viewed in the context of this

court’s preceding decisions in State v. Burke, supra,

182 Conn. 330, and State v. Sinclair, supra, 197 Conn.

574. In Burke, this court held that it was plain error,

requiring reversal, when the trial court completely

failed to give the instruction mandated by § 54-84 (b);

the court simply did not consider whether any kind of

harmless error analysis was applicable in this context.

State v. Burke, supra, 332–34; see also State v. Carter,

182 Conn. 580, 580–81, 438 A.2d 778 (1980) (per curiam)

(companion case following Burke). Subsequently, in

Sinclair, this court determined that the complete failure to instruct pursuant to § 54-84 (b) was harmful

error, thus rendering it unnecessary to consider the

state’s claim that harmless error analysis is applicable

in such cases.5 State v. Sinclair, supra, 584–86. In dicta,

however, the court cited Burke and State v. Carter,

supra, 580, and observed that it had not previously

‘‘undertake[n] such an inquiry when we held that total

noncompliance with § 54-84 (b) constituted plain

error.’’ State v. Sinclair, supra, 585. The court further

observed in dictum that ‘‘[t]here is much to be said in

favor of a rule that violation of the mandate of § 54-84

(b) automatically requires a new trial,’’ stating that:

‘‘Indubitably, the legislature has the power to implement constitutional rights in a manner that is more

stringent than the constitution itself provides. In

enacting § 54-84 (b), the legislature has done so. While

the constitutional right to a ‘no adverse inference’
charge depends upon the defendant’s request of such

a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that

the charge not be given. It would be entirely reasonable

to conclude that the principle of harmless error may

be inconsistent with the unconditional language of the

statute that the legislature has enacted for the protection of the right not to testify.’’6

(Footnote omitted.) Id.

In my view, this court should overrule the Appellate

Court’s decision in Suplicki, and our decisions in Sinclair and Burke, to the extent they stand forthe proposition that a trial court’s failure to give the no adverse

inference instruction mandated by § 54-84 (b) is per se

plain error requiring reversal. Holding the doctrine of

harmless error inapplicable when a trial judge fails to

comply with § 54-84 (b) is not mandated by the statute’s

purpose and, further, is absolutely incompatible with

our entrenched plain error jurisprudence. Turning first

to the purpose of § 54-84 (b),7

I observe that it ‘‘statutorily established a new procedure concerning the rights

of accused persons who choose to exercise their fifth

amendment right not to testify.’’ (Internal quotation

marks omitted.) State v. Tatem, 194 Conn. 594, 597–98,

483 A.2d 1087 (1984). The legislature enacted § 54-84

(b) in 1977 to address confusion created by this court’s

decision in State v. Branham, 171 Conn. 12, 17–18, 368

A.2d 63 (1976), which had held, in contravention of

the then prevailing federal case law, that a criminal

defendant was not constitutionally entitled to a ‘‘no

adverse inference’’ instruction, even upon request. See

20 S. Proc., Pt. 5, 1977 Sess., pp. 2068–69, remarks of

Senator Salvatore C. DePiano (discussing reaction and

confusion in state courts in wake of Branham); Conn.

Joint Standing Committee Hearings, Judiciary, Pt. 4,

1977 Sess., pp. 1251–52, remarks of Attorney Jerrold

Barnett, Office of the Chief Public Defender (explaining

thatBranham was minority position among state courts

and in conflict with federal decisions on point). Subsequent to the enactment of § 54-84 (b), the United States

Supreme Court decided Carter v. Kentucky, supra, 450

U.S. 305, which followed its decision on prosecutorial

comment in Griffin v. California, 380 U.S. 609, 614, 85

S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and required judges

to protect a defendant’s assertion of the fifth amendment privilege from the ‘‘toll’’ of undue juror speculation

by instructing juries, at the ‘‘proper request’’ of the

defendant, that they may not draw adverse inferences

from the defendant’s election not to testify. See State

v. Tatem, supra, 598–99.

I believe that we must view § 54-84 (b) through the

lens ofthe constitutionalrightthat it seeks to effectuate,

namely, the right to a jury instruction embodied by

Carter v. Kentucky, supra, 450 U.S. 305. See State v.

Tatem, supra, 194 Conn. 599 (stating that ‘‘rationale [of

Carter v. Kentucky, supra, 305] is fully appropriate to

the application of the mandate of § 54-84 [b] to this
case’’); see also State v. Day, 233 Conn. 813, 851 n.32,

661 A.2d 539 (1995) (describing ‘‘constitutional underpinnings of § 54-84’’), overruled on other grounds by

State v. Connor, 292 Conn. 483, 517–18, 973 A.2d 627

(2009). Put differently, although the legislature provided

a greater protection for the right against self-incrimination than existed under this court’s constitutional jurisprudence and, indeed, the United States Supreme

Court’s subsequent decision in Carter v. Kentucky,

supra, 288, it only addressed the substantive right,

rather than the appellate remedies available for the

violation of that right. See 20 H.R. Proc., Pt. 11, 1977

Sess., p. 4544, remarks of Representative Robert G.

Jaekle (discussing amendment to bill to make instruction automatic with opt-out, rather than dependent on

defendant’s request).

Thus, I find it instructive that all federal courts, and

the vast majority of state courts, that have considered

the issue hold that a trial court’s failure to give a no

adverse inference instruction when requested by a

defendant as set forth in Carter v. Kentucky, supra, 450

U.S. 300, is not structural error, but rather, is amenable

to harmless error review.8 See, e.g., United States v.

Whitten, 610 F.3d 168, 200–201 (2d Cir. 2010); id., 213–14

(Livingston, J., concurring in part and dissenting in

part); United States v. Soto, 519 F.3d 927, 930–31 (9th

Cir. 2008); Lewis v. Pinchak, 348 F.3d 355, 358–59 (3d

Cir. 2003), cert. denied, 540 U.S. 1200, 124 S. Ct. 1461,

158 L. Ed. 2d 117 (2004); Beathard v. Johnson, 177 F.3d

340, 350 (5th Cir.), cert. denied, 528 U.S. 954, 120 S. Ct.

380, 145 L. Ed. 2d 296 (1999); United States v. Burgess,

175 F.3d 1261, 1266–67 (11th Cir. 1999); United States

v. Brand, 80 F.3d 560, 568 (1st Cir. 1996), cert. denied

sub nom. Aponte-Velazquez v. United States, 519 U.S.

1077, 117 S. Ct. 737, 136 L. Ed. 2d 676 (1997); Hunter

v. Clark, 934 F.2d 856, 859–60 (7th Cir.) (en banc), cert.

denied, 502 U.S. 945, 112 S. Ct. 388, 116 L. Ed. 2d 338

(1991); Finney v. Rothgerber, 751 F.2d 858, 864 (6th

Cir.), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L.

Ed. 2d 310 (1985); Burns v. State, 699 So. 2d 646, 651–52

(Fla. 1997), cert. denied, 522 U.S. 1121, 118 S. Ct. 1063,

140 L. Ed. 2d 123 (1998); Parker v. State, 425 N.E.2d

628, 630 (Ind. 1981); State v. Griffin, 576 N.W.2d 594,

597 (Iowa 1998); James v. Commonwealth, 679 S.W.2d

238, 239 (Ky. 1984), cert. denied, 470 U.S. 1086, 105 S.

Ct. 1849, 85 L. Ed. 2d 147 (1985); Richardson v. State,

402 So. 2d 848, 852 (Miss. 1981); State v. Storey, 986

S.W.2d 462, 464 (Mo.), cert. denied, 528 U.S. 895, 120

S. Ct. 226, 145 L. Ed. 2d 189 (1999); Franklin v. State,

98 Nev. 266, 270, 646 P.2d 543 (1982); State v. Camacho,

218 N.J. 533, 551–52, 95 A.3d 635 (2014); White v. State,

779 S.W.2d 809, 828 (Tex. Crim. App. 1989), cert. denied,

495 U.S. 962, 110 S. Ct. 2575, 109 L. Ed. 2d 757 (1990).

The authorities that I have found holding to the contrary, from Alabama, Pennsylvania, and New York, lack

persuasive value because they are either conclusory or
predated and, therefore, do not consider the development of harmless error jurisprudence under Carter v.

Kentucky, supra, 450 U.S. 288. See Perry v. State, 368

So. 2d 310, 312 (Ala. 1979) (holding that under Ala. Code

§ 12-21-220 [1975], ‘‘[s]ubjective analysis on a case-bycase basis, to determine whether such error has

affected the substantial rights of the accused, has no

field of operation where, as here, the denial of the

requested instruction is tantamount to the denial of the

fundamental right of the accused, as constitutionally

and statutorily mandated, to elect not to testify’’);

Turner v. State, 924 So. 2d 737, 774 (Ala. Crim. App.

2002) (urging Alabama Supreme Court to reconsider

Perry v. State, supra, 310, as outdated in ‘‘light of the

abundant [case law] in other jurisdictions’’), cert.

denied, 547 U.S. 1056, 126 S. Ct. 1653, 164 L. Ed. 2d 399

(2006); Commonwealth v. Lewis, 528 Pa. 440, 453, 598

A.2d 975 (1991) (holding that failure to give no adverse

inference instruction is per se reversible under state

constitution, but failing to explain why violation of Carter v. Kentucky, supra, 288, is structural in nature);

People v. Britt, 43 N.Y.2d 111, 113–15, 371 N.E.2d 504,

400 N.Y.S.2d 785 (1977) (holding that failure to give no

adverse inference instruction required by N.Y. Crim.

Proc. Law § 300.10 [2] is reversible error per se because

of ‘‘mandatory language of the statute, coupled with

the fundamental importance of the right it protects,’’

but relying on Bruno v. United States, 308 U.S. 287,

294, 60 S. Ct. 198, 84 L. Ed. 257 [1939], which predated

modern harmless error jurisprudence).

In contrast to the unpersuasive decisions of those

courts following the minority approach, those courts

adopting the majority approach reason that a trial

court’s ‘‘failure to give a requested . . . instruction’’

pursuant to Carter v. Kentucky, supra, 450 U.S. 288, is

not a structural error ‘‘for which an assessment of the

evidence is unsuitable precisely because it concerns

the evidentiary value the jury may give to a defendant’s

election not to testify on his own behalf.’’9 United States

v. Brand, supra, 80 F.3d 568. Thus, in the absence of

any statutory language or legislative history suggesting

that automatic reversal is the legislature’s desired remedy for the court’s failure to give the instruction mandated by § 54-84 (b), I would not impute to the

legislature any desire to render such omissions structural error per se, because that extraordinary appellate

remedy is reserved for a very limited class of constitutional claims in which the fairness in the proceedings

is shaken given the unquantifiable nature of the error.

See, e.g., State v. Lopez, 271 Conn. 724, 733–34, 859

A.2d 898 (2004); see also United States v. GonzalezLopez, 548 U.S. 140, 149–50, 126 S. Ct. 2557, 165 L. Ed.

2d 409 (2006) (structural errors include: [1] complete

denial of counsel; [2] denial of right of self-representation; [3] denial of right to public trial; [4] denial of right

to trial by jury by giving of defective reasonable doubt
instruction; and [5] denial of right to counsel of choice).

Moreover, the notion of per se reversibility for failure

to instruct under § 54-84 (b) is wholly inconsistent with

the plain error doctrine, which, ‘‘codified at Practice

Book § 60-5, is an extraordinary remedy used by appellate courts to rectify errors committed at trial that,

although unpreserved, are of such monumental proportion that they threaten to erode our system of justice and

work a serious and manifest injustice on the aggrieved

party. [T]he plain error doctrine . . . is not . . . a rule

of reviewability. It is a rule of reversibility. 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. . . . In addition, the 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. . . . Plain error is a

doctrine that should be invoked sparingly. . . .

Implicit in this very demanding standard is the notion

. . . that invocation of the plain error doctrine is

reserved for occasions requiring the reversal of the

judgment under 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 discernable 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. . . . [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

whetherreversal underthe 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. . . . In State v. Fagan, [280

Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549

U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007)], we

described the two-pronged nature of the plain error

doctrine: [An appellant] cannot prevail under [the plain

error doctrine] . . . unless he demonstrates that the

claimed error is both so clear and so harmful that a

failure to reverse the judgment would result in manifest

injustice.’’(Citation omitted; emphasis omitted; internal

quotation marks omitted.) State v. Sanchez, 308 Conn.

64, 76–78, 60 A.3d 271 (2013). The second prong of the

plain error test sets a ‘‘stringent standard’’ that ‘‘will be

met only upon a showing that, as a result of the obvious

impropriety, the defendant has suffered harm so griev-
ous that fundamental fairness requires a new trial.’’

State v. Jamison, 320 Conn. 589, 599, 134 A.3d 560

(2016).

On this point, I find instructive this court’s recent

decisions in State v. Sanchez, supra, 308 Conn. 64, and

State v. Myers, 290 Conn. 278, 963 A.2d 11 (2009). In

Sanchez, this court held that reversal under the plain

error doctrine was not warranted in the absence of a

showing of harm when a trial court failed to give an

instruction with respect to eyewitness identification

pursuant to State v. Ledbetter, 275 Conn. 534, 575, 881

A.2d 290 (2005), cert. denied, 547 U.S. 1082, 126 S. Ct.

1798, 164 L. Ed. 2d 537 (2006).10 State v. Sanchez, supra,

80, 83–84. In Myers, this court held similarly with

respect to a trial court’s failure to obtain a plea or

conduct a trial in accordance with Practice Book § 42-

2, prior to sentencing a defendant as a repeat offender

under General Statutes § 21a-277 (a). State v. Myers,

supra, 290–91. The court in Sanchez, citing the holding

in State v. Myers, supra, 290, that a ‘‘ ‘trial court’s failure

to comply with a rule of criminal procedure, without

more, is insufficient to require reversal for plain error’ ’’;

[emphasis omitted] State v. Sanchez, supra, 81; further

observed that, ‘‘[t]o find plain error without regard to

the evidence in the case would be inconsistent with the

requirement of showing manifest injustice. For example, if evidence unaffected by the omitted instruction

included multiple reliable confessions by the defendant

and DNA evidence conclusively linking the defendant

to the crime, it would be exceedingly difficult to justify

a conclusion that the patent error so affected the fairness and integrity of and public confidence in the judicial proceedings as to require reversal of the judgment.

Indeed, in the absence of a circumstance like structural

error, which defies harmless error analysis . . . we are

unaware of a framework under which this court would

reverse a criminal conviction without considering the

harmfulness of the impropriety in light of the entire

case.’’11 (Citation omitted.) Id., 84; see also State v. Jamison, supra, 320 Conn. 600–601 (court, in determining

whether failure to give accomplice credibility instruction was reversible under plain error doctrine, could

not conclude that omission was so harmful as to result

in manifest injustice). I view the supervisory rule and

rule of practice at issue in Sanchez and Myers as indistinguishable in nature from § 54-84 (b), as all are prophylactic measures intended to protect independent

constitutional rights.12 See State v. Sanchez, supra, 80

(describing Myers as instructive because ‘‘plain error

question was raised in the context of the trial court’s

failure to comply strictly with a rule of practice intended

to protect a defendant’s right to due process’’).

Accordingly, I conclude that a trial court’s failure to

give the instruction required by § 54-84 (b) is not some

unique species of plain error requiring reversal without

regard to the manifest injustice caused by the omission,
as embodied by the harmfulness of the error. This is

particularly so given the statute’s ‘‘constitutional underpinnings,’’ which necessarily encompass an inquiry into

whetherthe state has proven the error harmless beyond

a reasonable doubt.13 State v. Day, supra, 233 Conn.

851 n.32; see, e.g., State v. Yurch, 229 Conn. 516, 523,

641 A.2d 1387 (‘‘when a statutory violation implicates

the defendant’s constitutional right against self-incrimination . . . it is the state’s burden to prove harmlessness beyond a reasonable doubt’’ [citation

omitted]), cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130

L. Ed. 2d 343 (1994). Thus, I would not find reversible

plain error arising from the failure to instruct in accordance with § 54-84 (b) without first conducting ‘‘an

examination of the particular facts in the case to determine whether the consequence of the omission has

resulted in manifest injustice to the defendant,’’ which

includes consideration of ‘‘whetherthe substantive concern underlying the instruction otherwise had been

brought to the jury’s attention’’ and ‘‘whether there is

independent evidence of the defendant’s guilt.’’ State

v. Sanchez, supra, 308 Conn. 82.

II

I now turn to whether the state proved beyond a

reasonable doubt that the trial court’s failure to instruct

the jury in accordance with § 54-84 (b) was harmless

error. Given the overwhelming evidence in this case,

and with the inconsistencies cited by the majority being

ultimately irrelevant to the central question before the

jury, I conclude that the trial court’s failure to provide

a no adverse inference instruction pursuant to § 54-84

(b) was harmless error.

Although much of the evidence is circumstantial, it

is as overwhelming as the apocryphal morning snow

on the ground. See, e.g., State v. Perkins, 271 Conn.

218, 246, 856 A.2d 917 (2004) (‘‘Moreover, it does not

diminish the probative force of the evidence that it

consists, in whole or in part, of evidence that is circumstantial rather than direct. . . . It is not one fact, but

the cumulative impact of a multitude of facts which

establishes guilt in a case involving substantial circumstantial evidence.’’ [Internal quotation marks omitted.]).

The present case involved a theft of power tools and

wire from a shed in the backyard of Donald Gennette

and Maria Gennette; the backyard of their property was

an open space that abutted the property lines of their

neighbors on either side, Thomas Blake and Ricardo

Gallo. Specifically, multiple witnesses, including Gallo

and Maria Gennette, were familiar with the defendant

and his vehicle, a red Toyota Corolla, because he rented

a basement apartment in Blake’s home. Gallo and Maria

Gennette testified that, on May 5, 2011, they saw the

defendant’s red Toyota Corolla parked immediately

next to the property line between the Gennette and

Blake properties. The vehicle had been backed in so
that it was facing the street, in close proximity to the

shed on the Gennettes’ property. Gallo saw the vehicle

at approximately 2 p.m., and Maria Gennette saw it

between 11:30 a.m. and 12 p.m., after she had returned

home from work. Maria Gennette testified that she had

never seen the defendant’s vehicle parked in that particular spot before. Even more unusual, the defendant’s

girlfriend engaged Maria Gennette in a conversation

when she passed by, which had never happened in the

nine months that the defendant and his girlfriend lived

next door. Later that afternoon, around 2 p.m., Gallo

saw the defendant enter the Gennettes’ unlocked shed,

remove items including a circular saw, a yellow chop

saw, and a large portion of wire, and place them into

the trunk of the Corolla. The very next day, the defendant went to a scrap yard in New Haven, where he

provided photographic identification in order to sell a

quantity of wire, for which he received $65. The wire

that the defendant sold was consistent with the wire

that had been reported stolen.14

I conclude that the cumulative strength of the evidence in this case renders it distinguishable from State

v. Dudla, 190 Conn. 1, 458 A.2d 682 (1983), on which

the majority relies heavily for the proposition that the

failure to give a no adverse inference charge was harmful because the jury might have considered the defendant’s failure to testify in deciding to credit the

testimony at trial.15 Dudla is inapposite because it

depended on the uncorroborated testimony of one witness, albeit a police officer, who testified that the defendant had thrown a gun on the grass during a routine

traffic stop; that was the ‘‘only evidence offered to link

the defendant to the weapon, the possession of which

is the basis of his conviction.’’ (Emphasis added.) Id.,

7. In contrast, in the present case, Gallo’s eyewitness

testimony about the theft itself was bolstered by the

other circumstantial evidence, including Maria Gennette’s testimony about the unusual location of the defendant’s vehicle near their shed, the unusual friendliness

of the defendant’s girlfriend toward Maria Gennette

when she approached the defendant’s vehicle, and the

defendant’s sale of a large quantity of wire on the very

next day.

Finally, I note that the state’s closing arguments

treaded nowhere near mentioning the defendant’s failure to testify; see, e.g., Griffin v. California, supra, 380

U.S. 615; and the trial court’s instructions emphasized

the presumption of innocence and the burden of proof,

in particular emphasizing, with respect to the alibi

defense, the state’s responsibility to prove that the

defendant was at the scene, that the ‘‘defendant does

not have to prove his claim that he was elsewhere,’’

and that it is ‘‘sufficient if, on considering all the evidence there arises in your mind a reasonable doubt as

to the defendant’s presence at the scene of the crime

when it was committed.’’ The protective effect of these
general instructions,16 combined with the overwhelming

evidence against the defendant, leaves me convinced

beyond a reasonable doubt that the trial court’s failure

to instruct the jury in accordance with § 54-84 (b) did

not affect the verdict in this case. See Hunter v. Clark,

supra, 934 F.2d 860–61 (failure to give no adverse inference instruction did not affect verdict in bank robbery

trial given positive eyewitness identification of defendant, testimony of witnesses placing defendant with

other robbers shortly before and after crime, and testimony that defendant took lead role in dividing proceeds

after robbery); State v. Griffin, supra, 576 N.W.2d

597–98 (failure to give no adverse inference instruction

was harmless error in gang sexual assault case when

victim’s identification of defendant was consistent and

‘‘unequivocal’’ because she was very familiar with him,

another perpetrator identified defendant, and DNA evidence did not exclude him); Richardson v. State, supra,

402 So. 2d 852 (failure to give no adverse inference

instruction considered harmless because ‘‘identification of appellant as the burglar and his guilt of the crime

were proved beyond reasonable doubt by overwhelming evidence’’); State v. Camacho, supra, 218 N.J. 554–55

(failure to give no adverse inference instruction harmless error in car theft case given instructions on burden

of proof and ‘‘overwhelming evidence that [the] defendant was the driver of the blue Audi when it eluded

police,’’ including identifications by multiple police officers, one of which took place when officer arrested

defendant upon exiting stolen car). Accordingly, I conclude that the manifest injustice necessary to trigger

reversal under the plain error doctrine simply is absent

in this case.

Because I would reverse the judgment of the Appellate Court and reinstate the judgment of conviction, I

respectfully dissent.

1 General Statutes § 54-84 provides: ‘‘(a) Any person on trial for crime

shall be a competent witness, and at his or her option may testify or refuse

to testify upon such trial. The neglect or refusal of an accused party to

testify shall not be commented upon by the court or prosecuting official,

except as provided in subsection (b) of this section.

‘‘(b) Unless the accused requests otherwise, the court shall instruct the

jury that they may draw no unfavorable inferences from the accused’s failure

to testify. In cases tried to the court, no unfavorable inferences shall be

drawn by the court from the accused’s silence.’’

2

I agree with the statement of the background facts and procedural history

set forth in the majority’s opinion.

3 See, e.g., State v. Ruocco, supra, 151 Conn. App. 744; State v. Stewart,

60 Conn. App. 301, 310, 759 A.2d 142, cert. granted and remanded for reconsideration, 255 Conn. 913, 763 A.2d 1039 (2000) (appeal withdrawn October

1, 2001); State v. Cruz, 59 Conn. App. 426, 430, 757 A.2d 74, cert. denied,

254 Conn. 947, 762 A.2d 904 (2000).

4 Claims that a trial court’s instructions, as given, did not satisfy § 54-84

(b) have been reviewed, however, for harmless error, to determine whether

it was reasonably possible that the noncompliant charge misled the jury.

See, e.g., State v. Townsend, 206 Conn. 621, 624–26, 539 A.2d 114 (1988);

State v. Miller, 34 Conn. App. 250, 258–61, 641 A.2d 400, cert. denied, 230

Conn. 902, 644 A.2d 916 (1994).

5 Citing Carter v. Kentucky, supra, 450 U.S. 304, and State v. Cohane, 193

Conn. 474, 484, 479 A.2d 763, cert. denied, 469 U.S. 990, 105 S. Ct. 397, 83

L. Ed. 2d 331 (1984), the court also noted that, in the purely constitutional
context ‘‘arising out of failure to give a ‘no adverse inference’ instruction,

we expressly reserved the question whether noncompliance with so central

an aspect of the privilege against self-incrimination could ever be considered

harmless error.’’ State v. Sinclair, supra, 197 Conn. 585.

6 Concurring separately, Justice Shea characterized the majority’s dictum

eschewing harmless error review in cases of complete omissions of ‘‘ ‘no

adverse inference’ ’’ instructions as ‘‘wholly superfluous.’’ State v. Sinclair,

supra, 197 Conn. 587. Justice Shea observed that the ‘‘sentence, though

equivocal, is likely to be construed as an intimation that this court will not

apply the harmless error principle to an inadvertent failure of the trial court,

inculpating also counsel for the state and for the defendant who neglect to

call attention to the matter, to give the ‘no adverse inference’ instruction

mandated by . . . § 54-84 (b).’’ Id. Emphasizing that the record rendered

it unnecessary to decide the issue, Justice Shea responded to the majority’s

dictum by ‘‘express[ing his] great reluctance to fashion another automatic

reversal rule that would impose on the judicial system of this state the

burden of a new trial no matter how overwhelming the evidence of guilt

may be.’’ Id.

7 That there has been some division among our state’s appellate judges

about whether a complete omission is per se plain error requiring reversal

suggests to me that there is more than one reasonable way to read the

statute, thus rendering resort to extratextual sources appropriate under § 1-

2z. Compare State v. Sinclair, supra, 197 Conn. 587 (Shea, J., concurring),

with id., 585, and State v. Suplicki, supra, 33 Conn. App. 130.

8 The United States Supreme Court has expressly declined to decide this

question. See James v. Kentucky, 466 U.S. 341, 351–52, 104 S. Ct. 1830, 80

L. Ed. 2d 346 (1984); Carter v. Kentucky, supra, 450 U.S. 304.

9

In holding that a violation of Carter v. Kentucky, supra, 450 U.S. 288,

which is passive in nature insofar as it concerns an omission, is amenable

to harmless error analysis, the United States Court of Appeals for the Third

Circuit observed in Lewis v. Pinchak, supra, 348 F.3d 358–59, that comments

by a prosecutor affirmatively urging jurors to draw adverse inferences from

failures to testify, or a jury instruction authorizing such inferences, in violation of Griffin v. California, supra, 380 U.S. 609, are subject to review for

harmless error. See Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824,

17 L. Ed. 2d 705 (1967); see also United States v. Hasting, 461 U.S. 499,

503, 510–11, 103 S. Ct. 1974, 76 L. Ed. 2d 96 (1983) (state proved error,

based on prosecutorial comments in violation of Griffin v. California, supra,

609, arising from defendants’ failure to offer evidence, harmless beyond

reasonable doubt). The Third Circuit ‘‘perceive[d] no material distinction

between prosecutorial comment cases and failure to instruct cases in terms

of their susceptibility to a quantitative assessment of trial evidence’’; Lewis

v. Pinchak, supra, 359; observing that ‘‘[t]he same constitutionally protected

interest is at stake when there is a Carter [v. Kentucky, supra, 288] violation

and, if anything, the jeopardy to that interest is greater when a prosecutor

improperly comments on a defendant’s failure to testify. A prosecutor’s

comment on a defendant’s decision not to testify affirmatively places the

inference of guilt before the jury, while the failure to instruct the jury only

creates the possibility that the jury will, on its own, draw an inference of

guilt.’’ (Emphasis added.) Id., 358.

10 ‘‘In State v. Ledbetter, [supra, 275 Conn. 575], this court determined

that, because of an increased risk of misidentification when an eyewitness

is not advised that the perpetrator of a crime may or may not be present

in the identification procedure, we would exercise our supervisory authority

to require trial courts to provide an instruction to the jury regarding this

risk in cases in which the identification procedure administrator had failed

to provide such a warning, unless no significant risk of misidentification

existed . . . .’’ State v. Sanchez, supra, 308 Conn. 66–67.

11 I note that the United States Court of Appeals for the First Circuit has

held similarly with respect to whether a trial court’s failure to comply with

Carter v. Kentucky, supra, 450 U.S. 288, is ‘‘plain’’ error and ‘‘affect[ed]

substantial rights’’; United States v. Olano, 507 U.S. 725, 736–37, 113 S. Ct.

1770, 123 L. Ed. 2d 508 (1993); and has engaged in a harmlessness analysis

with respect to whether an unpreserved error of a violation of Carter v.

Kentucky, supra, 288, warranted reversal under the federal plain error rule,

rule 52 (b) of the Federal Rules of Criminal Procedure. See United States

v. Brand, supra, 80 F.3d 567–68; see also United States v. Medina-Martinez,

396 F.3d 1, 9–10 (1st Cir.) (failure to give instruction pursuant to Carter v.

Kentucky, supra, 288, not plain error because jury instructions covered

presumption of innocence and burden of proof and court was ‘‘confident
that the evidence . . . would have resulted in a guilty verdict irrespective

of the instructional error’’), cert. denied, 544 U.S. 1007, 125 S. Ct. 1955, 161

L. Ed. 2d 786 (2005).

12 I recognize that in Sanchez this court rejected the defendant’s reliance

on State v. Burke, supra, 182 Conn. 331–32, forthe proposition that a showing

of harm is not required for plain error reversal given failure to comply with

a criminal procedure rule. The court described Burke as limited to ‘‘a statute

enacted to overrule holdings by this court and to effectuate a fundamental

right . . . .’’ State v. Sanchez, supra, 308 Conn. 81 n.7. I would not give this

aspect of Burke even the limited credence that this court did in Sanchez,

and I deem it not authoritative on this point because it does not appear

that the harm question was even raised, let alone considered with respect

to plain error reversal. I view the court’s analysis in Burke as nothing more

than an oversight insofar as it fails to accommodate for the contours of the

plain error doctrine. See State v. Myers, supra, 290 Conn. 290 n.10 (criticizing

Jacqueline Properties, LLC v. Gartrell, 101 Conn. App. 6, 919 A.2d 1059,

cert. denied, 283 Conn. 907, 927 A.2d 918 [2007], as suggesting that violation

of trial procedure statute is subject to per se reversal under plain error

doctrine).

13 It bears emphasis that ‘‘application of a harmless error analysis is consistent with the basic tenets and goals of our adversarial system of criminal

justice. Indeed, the appellate harmless error doctrine is rooted in [a] fundamental purpose of our criminal justice system—to convict the guilty and

acquit the innocent. The harmless error doctrine recognizes the principle

that the central purpose of a criminal trial is to decide the factual question

of the defendant’s guilt or innocence . . . and promotes public respect for

the criminal process by focusing on the underlying fairness of the trial rather

than on the virtually inevitable presence of immaterial error.’’ (Citation

omitted; internal quotation marks omitted.) State v. Yurch, 229 Conn. 516,

523 n.6, 641 A.2d 1387, cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed.

2d 343 (1994).

14 After the defendant learned from Blake that Donald Gennette suspected

him in the theft, the defendant denied involvement in the theft, but abandoned his apartment and possessions in Blake’s house. The defendant asked

Blake to meet him that evening at a nearby Burger King restaurant to bring

him some medications from the apartment.

15 The majority also cites inconsistencies in Donald Gennette’s testimony

about the amount of wire that was taken, which the defendant used to

support his argument at trial that there was reasonable doubt about whether

he was at the scene and as to what, if anything, was taken. This is consistent

with the defendant’s theory of the case, which was that Donald Gennette

and Gallo lied to the police about the burglary in order to defraud the

Gennettes’ homeowners insurance company, and that if there was in fact

a theft, Gallo—who was unemployed, home during the day, and knew the

contents of the Gennettes’ shed—had the motive and the opportunity to

be the thief. None of these inconsistencies cast doubt, however, on the

identification of the defendant as the person who had parked his vehicle

in an unusual location near the shed, took items from the shed, and then sold

wire consistent with that taken from the shed on the day after the burglary.

Further, the majority relies more on the defendant’s alibi witness than

the defendant himself did, as the defendant spent virtually all of his closing

argument at trial attempting to discredit the testimony of the state’s witnesses, and made only one isolated reference to the alibi witness, thus

suggesting that alibi was not a major strategic focus forthe defense. This was

for good reason. As the prosecutor emphasized during rebuttal argument, the

testimony of the alibi witness was shaky at best, insofar as he testified that

the defendant was with him at his auto body repair shop the entire time

during the day of the burglary, but he could not remember whether the

defendant’s girlfriend was present the entire time, what she did while she

was at the body shop, and when she had left.

16 During voir dire, the trial court instructed the venirepersons that the

‘‘defendant has no obligation to put on any evidence at all. He doesn’t have

to put on any evidence and he doesn’t have to take the stand. And if he

chooses not to take the stand or not to put on any evidence, you as a juror

are not to hold that against him because those are his rights.’’ Although the

trial court’s subsequent preliminary instructions priorto the start of evidence

included a discussion of the burden of proof and the fact that the defendant

may present evidence, but is not obligated to, they did not provide a specific

‘‘no adverse inference’’ admonition. I do not consider the voir dire instructions in my analysis because Irecognize that preliminary instructions, includ-
ing those during jury selection prior to the actual commencement of the

trial, have been held insufficient to satisfy the court’s obligations under § 54-

84 (b). See State v. Hicks, 97 Conn. App. 266, 276–77, 903 A.2d 685, cert.

denied, 280 Conn. 930, 909 A.2d 958 (2006).