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******************************************************STATE v

. RUOCCO—DISSENT ESPINOSA, J., with whom ROBINSON, J., joins, dissenting. I respectfully disagree with the decision ofthe majority to affirm thejudgment ofthe Appellate Court, whichreversedthejudgmentofconvictionofthe defendant, Dustin Ruocco, on the ground that the trial court committed plain error by failing to instruct thejury, 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 inStatev. Suplicki, 33 Conn. App. 126, 130–31, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994), which held thatthe 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, meaningthatthe record fails to reveal the manifest injustice necessary forplain
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 completefailurebythetrialcourttoprovidetheinstruction 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 protectedby § 54-84 (b) requires anewtrial in all cases. The state contends that requiring reversal without considering whether the failure to instruct was harmful is inconsistentwithboth: (1) thetwo-prongedtestgoverning the plain error doctrine, which requires an assessment ofwhether 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 alegislative judgment that ‘‘the mandated instruction is an unquantifiable impropriety that casts doubt on the fairness ofthe entire trial,’’ and that the manifest injustice prong ofthe plain errortest ‘‘is simply metper se under the statute whenever omission is total as opposed to partial.’’ Relying on State v. Burke, 182 Conn. 330, 438A.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 goodlaw. Iagree, however, withthe state, andconclude that failure to provide the no adverse inference instruction mandated by § 54-84 (b) does not require reversal intheabsence ofmanifestinjusticeintheformofconstitutional 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 ofstatutoryinterpretationwhetherPractice Book § 37-12 [a] requires release of defendant when probable cause determination not made within fortyeight hours ofarrest). It is well settled thatwe 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.
Thestatutorylanguageatissueinthisappealprovides in relevant part: ‘‘Unless the accused requests otherwise, the courtshallinstructthejurythattheymaydraw
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 foratrial court’s completefailureto givethe 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 previousjudicial interpretations ofthis language and the purpose ofthe statute.’’ (Internal quotation marks omitted.) Commissionerof PublicSafetyv.FreedomofInformationCommission, 312 Conn. 513, 527, 93 A.3d 1142 (2014). Thus, I turn first to prior judicial interpretations of § 54-84 (b), inparticular, theAppellate Court’s controlling decision on this point in State v. Suplicki, supra, 33 Conn. App. 126. See footnote 3 of this dissenting opinion. Observingthatthis courthadleftthe questionopenin Statev. Sinclair, supra, 197 Conn. 585–86, theAppellate 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 stringcitation 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. SeeArizona 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 ofproof on malice subject to harmless
error review). The Appellate Court’s reliance in Suplicki on its decisions inStatev. 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 essentialelementofthechargedoffensewasnotsubject to harmless error review; State v. Suplicki, supra, 131; isnowunpersuasivebecausethatpairofcasesiswholly inconsistent with the United States Supreme Court’s subsequent decision inNederv. UnitedStates, 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, 438A.2d 778 (1980) (percuriam) (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.5Statev. 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
acharge, the statutoryrightisconferreduponthe defendant unconditionally, in the absence ofhis request that the charge notbe given. It would be entirely reasonable to conclude that the principle of harmless error may be inconsistent with the unconditional language ofthe statute that the legislature has enacted for the protection ofthe 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 SinclairandBurke, tothe extenttheystandfortheproposition 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 complywith § 54-84 (b) isnotmandatedbythe statute’s purpose and, further, is absolutely incompatible with
our entrenched plain errorjurisprudence. 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 ofBranham); Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 1977 Sess., pp. 1251–52, remarks of Attorney Jerrold Barnett, Office ofthe ChiefPublic Defender (explaining thatBranhamwasminoritypositionamongstatecourts and in conflict with federal decisions on point). Subsequent to the enactment of § 54-84 (b), the United States Supreme Court decided Carterv. 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 requiredjudges to protect a defendant’s assertion of the fifth amendmentprivilegefromthe ‘‘toll’’ ofunduejurorspeculation 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 lensofthe constitutionalrightthatitseeksto 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 thiscase’’); 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). Putdifferently, althoughthelegislatureprovided
a greaterprotection forthe right against self-incrimination than existed underthis court’s constitutionaljurisprudence 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 Carterv. 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 (2dCir. 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); Beathardv. 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. 2d310 (1985);Burnsv. 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); Statev. Camacho, 218 N.J. 533, 551–52, 95 A.3d 635 (2014); White v. State, 779 S.W.2d809, 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 orpredated 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. 2d310, 312 (Ala. 1979) (holdingthatunderAla. 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 ofthe 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, butfailingto explainwhyviolation ofCarter 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 errorperse 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 evidentiaryvalue thejury may give to a defendant’s electionnottotestifyonhis ownbehalf.’’9 UnitedStates

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 ofright to public trial; [4] denial ofright to trial byjury by giving of defective reasonable doubtinstruction; and [5] denial ofrightto counsel ofchoice). Moreover, the notion ofperse reversibilityforfailure 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 ofsuch monumentalproportionthattheythreatentoerode oursystemofjusticeand 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 ofthe 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 ofplain 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 ofits consequences in order to determine whetherreversalundertheplainerrordoctrineisappropriate. 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 thejudgmentwould resultin manifest injustice.’’ (Citationomitted; emphasis omitted; internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76–78, 60 A.3d 271 (2013). The second prong ofthe plain error test sets a ‘‘stringent standard’’ that ‘‘will be met onlyupon ashowing that, as aresult ofthe 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).10Statev. 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 inStatev.Myers, supra, 290, thata‘‘ ‘trial court’sfailure to comply with a rule of criminal procedure, without more, isinsufficientto requirereversalforplainerror’ ’’; [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 bythe defendant and DNA evidence conclusively linking the defendant to the crime, it would be exceedingly difficult tojustify
a conclusion that the patent error so affected the fairness and integrity of and public confidence in thejudicial proceedings as to require reversal ofthejudgment. Indeed, in the absence ofa circumstance like structural error, which defies harmless error analysis

. . . we are unaware ofa framework under which this court would
reverse a criminal conviction without considering the harmfulness of the impropriety in light of the entire case.’’11 (Citationomitted.) Id., 84; see alsoStatev. 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 ofpractice at issue in Sanchez andMyers as indistinguishableinnaturefrom § 54-84 (b), asallareprophylactic 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 failureto complystrictlywitharule ofpracticeintended 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 ofplain error requiring reversal without regardto the manifestinjustice causedbythe omission,as embodied by the harmfulness of the error. This is particularlyso giventhe statute’s ‘‘constitutionalunderpinnings,’’ which necessarily encompass an inquiryinto whetherthe state hasproventhe errorharmlessbeyond
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 ofthe particular facts in the case to determine whether the consequence of the omission has resulted in manifest injustice to the defendant,’’ which includes considerationof‘‘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 doubtthatthetrial court’s failure to instruct the jury in accordance with § 54-84 (b) was harmless
error. Given the overwhelming evidence in this case, andwiththe inconsistencies citedbythe majoritybeing 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 orin part, ofevidence 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 circumstantialevidence.’’ [Internalquotationmarks 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 oftheirpropertywas 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 andhisvehicle, aredToyotaCorolla, because he rented
abasementapartmentinBlake’s home. Gallo andMaria 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 sothat 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
neverseenthe defendant’svehicleparkedinthatparticular 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 ano 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 ofone witness, albeitapolice officer, whotestifiedthatthe 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 ofthe 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., Griffinv. California, supra, 380 U.S. 615; and the trial court’s instructions emphasized the presumption ofinnocence and the burden ofproof, 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 ofthesegeneralinstructions,16combinedwiththe 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 Hunterv. 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 testimonythatdefendanttookleadrole in dividingproceeds 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 didnot exclude him);Richardsonv. State, supra, 402 So. 2d 852 (failure to give no adverse inference instruction considered harmless because ‘‘identification ofappellant astheburglarandhis guilt ofthe crime
were proved beyond reasonable doubt by overwhelmingevidence’’);Statev. Camacho, supra, 218N.J. 554–55 (failure to give no adverse inference instruction harmless errorin cartheft case given instructions on burden ofproof and ‘‘overwhelming evidence that [the] defendant was the driver of the blue Audi when it eluded police,’’ includingidentificationsbymultiplepolice 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 jurythattheymaydrawnounfavorable inferencesfromthe accused’sfailure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.’’

2 Iagreewiththe statementofthebackgroundfacts andproceduralhistory 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 constitutionalcontext ‘‘arising out of failure to give a ‘no adverse inference’ instruction,

we expressly reserved the question whether noncompliance with so central

anaspect oftheprivilege againstself-incrimination could everbe 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 applythe harmless errorprinciple to an inadvertent failure ofthe 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 ofAppeals for the Third Circuit observedinLewisv.Pinchak, supra, 348 F.3d358–59, that comments by a prosecutor affirmatively urgingjurors to draw adverse inferences from failures to testify, or ajury 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, basedonprosecutorialcommentsinviolationofGriffinv. 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 oftheir susceptibility to a quantitative assessment oftrial evidence’’; Lewis

v. Pinchak, supra, 359; observing that ‘‘[t]he same constitutionallyprotected 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 inthe identificationprocedure, we would exercise oursupervisoryauthority 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 UnitedStates 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 ‘‘confidentthat 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

onStatev.Burke, supra, 182 Conn. 331–32, forthepropositionthatashowing ofharm is not required for plain error reversal given failure to comply with

a criminalprocedure rule. The court describedBurke as limitedto ‘‘astatute 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 ofthe plain errordoctrine. SeeStatev.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 Itbears emphasisthat ‘‘applicationofaharmless erroranalysisis 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 criminalprocess byfocusing onthe underlying fairness ofthetrial 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 Afterthe defendant learned from Blake that Donald Gennette suspected him in the theft, the defendant denied involvement in the theft, but abandoned his apartment andpossessions 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 supporthis argument attrialthatthere was reasonable doubt aboutwhether he was at the scene and as to what, ifanything, 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 inanunusuallocationnearthe shed, tookitems fromthe shed, andthensold 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 ofhis 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 suggestingthatalibiwasnotamajorstrategicfocusforthe defense. Thiswas forgoodreason. Astheprosecutoremphasizedduringrebuttalargument, the testimony ofthe 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 ajuror

are not to hold that against him because those are his rights.’’ Although the trialcourt’ssubsequentpreliminaryinstructionspriortothe startofevidence included a discussion ofthe burden ofproofand the fact that the defendant maypresent evidence, but is not obligated to, they did notprovide aspecific ‘‘no adverse inference’’ admonition. I do not consider the voir dire instructionsinmyanalysisbecauseIrecognizethatpreliminaryinstructions, includ-ing those during jury selection prior to the actual commencement of the trial, have been held insufficientto satisfythe 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).