State v. Suplicki

Page 1179

634 A.2d 1179

33 Conn.App. 126

STATE of Connecticut v. Rodney J. SUPLICKI.

No. 12053.

Appellate Court of Connecticut.

Argued Sept. 21, 1993.

Decided Nov. 30, 1993.

Certification Denied June 9, 1994.

Kevin A. Randolph, Deputy Asst. Public Defender, for appellant (defendant).

Leah Hawley, Asst. State's Atty., with whom, on the brief, were John T. Redway, State's Atty., and Barbara Hoffman, Asst. State's Atty., for appellee (state).

Before DUPONT, C.J., and EDWARD Y. O'CONNELL and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendant appeals from the judgment following his conviction by a jury of assault in the third degree in violation of General Statutes § 53a-61(a)(1). His sole claim is that, contrary to the mandate of General Statutes § 54-84(b), the trial court failed to instruct the jury that no adverse inference could be drawn against him because of his failure to testify at trial. We agree that the omission of that instruction was improper, reverse the defendant's conviction and remand the case for a new trial.

The jury reasonably could have found certain relevant facts. On April 1, 1992, at approximately 9 p.m., two Clinton police officers were dispatched to the Holiday Motel in Clinton, where Vagshi Keshwala, the motel manager, complained that he had been assaulted by the defendant. Keshwala told the officers that he had gone to collect rent from the defendant, a tenant of the motel, when the defendant pulled Keshwala into his room and punched him in the face. Both officers reported that Keshwala's eyeglasses were broken and his face was swollen and discolored. He did not request medical attention, however. When confronted by the two officers, the defendant denied striking Keshwala.

In addition to describing the events of April 1, 1992, Keshwala testified that he suffered from a preexisting medical condition that caused pain and discomfort in his face, but he did not mention swelling and discoloration as symptoms. The defendant did not testify.

The defendant claims on appeal that the trial court erroneously failed to give a "no adverse inference" instruction to the jury in accordance with the requirements of General Statutes § 54-84(b), and that as a consequence he should be awarded a new trial. Section 54-84(b) mandates: "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." It is undisputed that no such language was included in the court's charge to the jury, and that it was improper for the court not to give that instruction. State v. Sinclair, 197 Conn. 574, 583-84, 500 A.2d 539 (1985). It is also undisputed that the defendant made no objection to the omission of the "no adverse inference" instruction at trial. He attempts to raise this issue for the first time on appeal under either the "plain error" doctrine or the four-pronged test for constitutional error enunciated in State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989).

In State v. Thurman, 10 Conn.App. 302, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987), we were faced with a defendant who, like the defendant in this case, did not testify at trial and neither requested a "no adverse inference" instruction pursuant to General Statutes § 54-84(b) nor objected to the court's failure to provide one. The defendant in Thurman claimed on appeal that such failure constituted a violation of his rights to due process and against self-incrimination under the fifth and fourteenth amendments to the United States constitution and article first, § 8, of the Connecticut constitution, and a violation of his rights under General Statutes § 54-84(b). We found his constitutional claim to be reviewable under State v. Evans, 165 Conn. 61, 70-71, 327 A.2d 576 (1973), ¹ and his statutory claim to be reviewable under the plain error doctrine. State v. Thurman, supra, 10 Conn.App. at 306, 523 A.2d at 891; see State v. Townsend, 206 Conn. 621, 625, 539 A.2d 114 (1988); State v. Sinclair, supra, 197 Conn. at 582, 500 A.2d at 539; State v. Tatem, 194 Conn. 594, 595-96, 483 A.2d 1087 (1984); State v. Burke, 182 Conn. 330, 331, 438 A.2d 93 (1980); see also State v. Carpenter, 19 Conn.App. 48, 562 A.2d 35, cert. denied, 213 Conn. 804, 567 A.2d 834 (1989).

It is clear from existing case law that the defendant's request for plain error review must be granted. State v. Carpenter, supra, 19 Conn.App. at 55, 562 A.2d at 35; State v. Thurman, supra, 10 Conn.App. at 308-10, 523 A.2d at 891. "[N]oncompliance with § 54-84(b) is plain error.... We have regularly characterized as error any but the most minor departure from the language that § 54-84(b) requires." State v. Sinclair, supra, 197 Conn. at 582-83, 500 A.2d at 539. Cases holding the failure to instruct the jury properly under General Statutes § 54-84(b) to be plain error include State v. Townsend, supra; State v. Cobb, 199 Conn. 322, 324, 507 A.2d 457 (1986); State v. Sinclair, supra, 197 Conn. at 582, 500 A.2d at 539; State v. Tatem, supra, 194 Conn. at 595, 483 A.2d at 1087; State v. Carpenter, supra; State v. Thompson, 17 Conn.App. 490, 493-94, 554 A.2d 297 (1989); and State v. Thurman, supra, 10 Conn.App. at 309, 523 A.2d at 891. We hold that the trial court's failure to give the statutorily required instruction was plain error in this case as well.

We next consider the state's argument that the failure of the trial court to instruct the jury properly should be considered harmless error in light of what the state claims to be overwhelming evidence against the defendant. A harmless error analysis has been undertaken in cases in which a "no adverse inference" instruction that deviated from the language of the statute was given. See State v. Townsend, supra; State v. Cobb, supra; State v. Tatem, supra; State v. Carrione, 188 Conn. 681, 453 A.2d 1137 (1982); State v. Thompson, supra; State v. Carpenter, supra.

In cases where the trial court totally omitted the "no adverse inference" instruction, however, the propriety of a harmless error analysis has been questioned, although the issue has not been expressly decided. "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." State v. Sinclair, supra, 197 Conn. at 585, 500 A.2d at 539; see also 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). ²

In State v. Thurman, supra, 10 Conn.App. at 310-13, 523 A.2d at 891, this court observed that State v. Burke, 182 Conn. 330, 438 A.2d 93 (1980), and State v. Carter, 182 Conn. 580, 438 A.2d 778 (1980), had determined that the complete omission of a "no adverse inference" instruction was reversible error without consideration of a harmless error analysis. We then noted that State v. Sinclair, supra, 197 Conn. at 585-86, 500 A.2d at 539, considered the applicability of harmless error analysis in such a case, but expressly left the question of its propriety open. We also declined to rule on that question, determining that even if a harmless error analysis were undertaken, the state had not proven beyond a reasonable doubt that the trial court's noncompliance with § 54-84(b) was harmless. State v. Thurman, supra, 10 Conn.App. at 313-16, 523 A.2d at 891.

We now rule on the question and hold 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. See Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 [33 Conn.App. 131] (1986); State v. Hamilton, 30 Conn.App. 68, 76-78, 618 A.2d 1372, cert. granted on other grounds, 225 Conn. 910, 621 A.2d 290 (1993); State v. Payne, 12 Conn.App. 408, 414-15, 530 A.2d 1110 (1987).

The judgment is reversed and the case is remanded for a new trial.

In this opinion the other Judges concurred.

1 State v. Evans, 165 Conn. 61, 327 A.2d 576 (1973), was the precursor to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). State v. Thurman, 10 Conn.App. 302, 523 A.2d 891 (1987), was decided prior to the release of the Golding decision.

2 The United States Supreme Court has yet to pass on the question of whether, after a request by a defendant, a trial judge's refusal to give a "no adverse influence"...