Judicial District of New Haven


      Criminal; Whether Appellate Court Properly Reversed  Defendant’s Conviction for Plain Error Due to Omission of “No Adverse Inference” Jury Instruction; Whether Error in Failing to Give Instruction Subject to Harmless Error Analysis.  The defendant was charged with burglary and larceny in connection with the theft of equipment and tools from a neighbor’s shed.  He did not testify at his trial, and a jury found him guilty of both charges.  The defendant appealed, raising the unpreserved claim that the trial court improperly failed to instruct the jury under General Statutes § 54-84 (b), which provides that “[u]nless the accused requests otherwise, the court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify.”  The defendant argued that the failure to give a “no adverse inference” instruction constituted plain error mandating reversal of his conviction.  The Appellate Court (151 Conn. App. 732) agreed, ruling that the omission satisfied the two prong test for plain error reversal in that (1) the error was obvious and (2) the consequences of the error are so grievous as to result in fundamental unfairness or “manifest injustice.”  The court also cited precedent suggesting that noncompliance with § 54-84 (b) can never constitute harmless error.  The state appeals, and the Supreme Court will decide whether the Appellate Court properly concluded that the defendant’s conviction should be reversed for plain error based on the trial court’s failure to give the no adverse inference instruction.  The state claims that the Appellate Court erred in concluding that the omission of the instruction would result in “manifest injustice” for purposes of the plain error doctrine without engaging in harmless error analysis.  The state argues that it remains an open question whether failure to give a no adverse inference instruction is subject to harmless error analysis but that, in determining whether an error resulted in manifest injustice, a reviewing court must necessarily consider the harmfulness of the impropriety in light of all the circumstances.  The state contends that there was no manifest injustice or harm here because the jury was instructed during jury selection that they were not to draw an adverse inference from the defendant’s failure to testify, because the balance of the jury instructions foreclosed any possibility that the jury would draw an adverse inference, and because the evidence of the defendant’s guilt was overwhelming.