November 10, 2016
J. Krisch, assigned counsel, for the appellant (defendant).
A. Chiarenza, assistant state's attorney, with whom, on
the brief, were John C. Smriga, state's attorney, C.
Robert Satti, Jr., supervisory assistant state's
attorney, and Katherine Donoghue, deputy assistant
state's attorney, for the appellee (state).
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa and
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 defendant, Tajah McClain, appeals, upon
our grant of his petition for certification,  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
acquiescence of counsel cannot waive an error of such
magnitude. 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
necessarily 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 judgment
of the Appellate Court.
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,  in connection with the
shooting death of Eldwin Barrios.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 parties, 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 arguments, and responded, ‘No, Your Honor,
' when the court asked if there was anything further from
either side relating to the instructions.
the next day of trial, the court stated that it would not
give the state's requested instruction, provided 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.
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 omitted.) Id., 289-91.
parties then gave closing arguments, during which the
prosecutor argued that a discrepancy between two statements
made by the defendant demonstrated his consciousness of
guilt. Specifically, the prosecutor 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.
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.
defendant then appealed from the judgment of conviction
claiming, inter alia, that the trial court's failure 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. Kitchens, 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,  the Appellate
Court concluded that ‘‘the representations 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.
first issue before us is whether a Kitchens waiver
forecloses plain error reversal. Onappeal, the defendant
makes the policy argument that if a fundamental, manifest
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 instructional
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 relinquished 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');">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.
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,  when defense
counsel failed to object or correct the given instruction.
State v. Kitchens, 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 . . . .'' (Internal quotation marks
omitted.) Id., 467.
court then analyzed whether the defendant's claim had
been waived under the third prong of Golding.
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
quotation marks omitted.) Id., 469. Additionally,
‘‘Connecticut courts have consistently held that
when a party fails to raise in the ...