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State v. McClain

Supreme Court of Connecticut

March 14, 2017

STATE OF CONNECTICUT
v.
TAJAH MCCLAIN

          Argued November 10, 2016

          Daniel J. Krisch, assigned counsel, for the appellant (defendant).

          Rocco 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 Robinson, Js.

          OPINION

          ROBINSON, J.

         The principal issue in this certified appeal is whether an implied waiver of a claim of instructional error pursuant to State v. Kitchens, 299 Conn. 447, 482-83, 10 A.3d 942 (2011), precludes review of that claim under the plain error doctrine. The defendant, Tajah McClain, appeals, upon our grant of his petition for certification, [1] from the judgment of the Appellate Court affirming the judgment of conviction, rendered after a jury trial, of, inter alia, murder with a firearm in violation of General Statutes §§ 53a-54a and 53-202k. See State v. McClain, 154 Conn.App. 281, 283, 105 A.3d 924 (2014). On appeal, the defendant contends that the Appellate Court improperly determined that a Kitchens waiver precluded plain error review of his claim of instructional error because the implied 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.

         The record and the Appellate Court opinion reveal the following facts and procedural history. The state charged the defendant with, inter alia, murder with a firearm in violation of §§ 53a-54a and 53-202k, [2] in connection with the shooting death of Eldwin Barrios.[3]On the first day of his jury trial, ‘‘the court provided counsel with a copy of the proposed jury instructions, indicated it received requests to charge from both 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.

         ‘‘On 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.

         ‘‘During its rebuttal case, the state introduced the [defendant's] uniform arrest report into evidence and elicited testimony related thereto. Defense counsel did not object. The state also elicited testimony that, three months before the murder, the defendant stated he was living on Wood Avenue in Bridgeport. Defense counsel did not object. After the state rested its rebuttal case, the court held a charge conference on the record. There was no further discussion about the consciousness of guilt instruction, and, when the court asked if there was ‘[a]nything further on the instructions, ' defense counsel responded, ‘No, Your Honor.' '' (Footnote omitted.) Id., 289-91.

         The 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.

         The jury found the defendant guilty of all charges. The trial court then rendered a judgment of conviction in accordance with the jury's verdict and sentenced the defendant to a total effective sentence of sixty-five years incarceration. Id., 284.

         The defendant then appealed from the judgment of conviction claiming, inter alia, that the trial court's 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, [4] 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.

         I

         The 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 error.

         In response, the state argues that a Kitchens waiver should foreclose relief under the plain error doctrine because a Kitchens waiver encompasses an inference that the defendant knowingly and voluntarily 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.

         The question of whether a Kitchens waiver precludes plain error review is one of law; thus, this court's review is plenary. Moye v. Commissioner of Correction, 316 Conn. 779, 784, 114 A.3d 925 (2015). To answer this question requires a brief review of our recent waiver jurisprudence. In Kitchens, we considered whether a defendant was entitled to appellate review of his claim of instructional error pursuant to State v. Golding, supra, 213 Conn. 239-40, [5] when defense counsel failed to object or correct the given instruction. State v. 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.

         The 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 ...


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