State v. Ruocco

• Decision Date: 06 September 2016
• Docket Number: SC19387
• Parties: STATE v. RUOCCO
• Court: Connecticut Supreme Court

STATE v. RUOCCO

SC19387

Supreme Court of Connecticut

September 6, 2016

DISSENT

ESPINOSA, J., with whom ROBINSON, J., joins, dissenting. I respectfully disagree with the decision of the majority to affirm the judgment of the Appellate Court, which reversed the judgment of conviction of the defendant, Dustin Ruocco, on the ground that the trial court committed plain error by failing to instruct the jury, 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 in State v. Suplicki, 33 Conn. App. 126, 130-31, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994), which held that the 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, meaning that the record fails to reveal the manifest injustice necessary for plain 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 complete failure by the trial court to provide the instruction 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 protected by § 54-84 (b) requires a new trial in all cases. The state contends that requiring reversal without considering whether the failure to instruct was harmful is inconsistent with both: (1) the two-pronged test governing the plain error doctrine, which requires an assessment of whether 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 a legislative judgment that "the mandated instruction is an unquantifiable impropriety that casts doubt on the fairness of the entire trial," and that the manifest injustice prong of the plain error test "is simply met per se under the statute whenever omission is total as opposed to partial." Relying on State v. Burke, 182 Conn. 330, 438 A.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 good law. I agree, however, with the state, and conclude that failure to provide the no adverse inference instruction mandated by § 54-84 (b) does not require reversal in the absence of manifest injustice in the form of constitutional harm resulting from the infringement of the defendant's fifth amendment privilege against self-incrimination.

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 of statutory interpretation whether Practice Book § 37-12 [a] requires release of defendant when probable cause determination not made within forty-eight hours of arrest). It is well settled that we 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.

The statutory language at issue in this appeal provides in relevant part: "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. . . ." General Statutes § 54-84 (b). The statute, however, does not set forth a specific appellate remedy for a trial court's complete failure to give the 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 previous judicial interpretations of this language and the purpose of the statute." (Internal quotation marks omitted.) Commissioner of Public Safety v. Freedom of Information Commission, 312 Conn. 513, 527, 93 A.3d 1142 (2014). Thus, I turn first to prior judicial interpretations of § 54-84 (b), in particular, the Appellate Court's controlling decision on this point in State v. Suplicki, supra, 33 Conn. App. 126. See footnote 3 of this dissenting opinion.

Observing that this court had left the question open in State v. Sinclair, supra, 197 Conn. 585-86, the Appellate 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. See Arizona 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 of proof on malice subject to harmless error review). The Appellate Court's reliance in Suplicki on its decisions in State v. 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 essential element of the charged offense was not subject to harmless error review; State v. Suplicki, supra, 131; is now unpersuasive because that pair of cases is wholly inconsistent with the United States Supreme Court's subsequent decision in Neder v. United States, 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, 438 A.2d 778 (1980) (per curiam) (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.⁵ State v. 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 a charge, the statutory right is conferred upon the defendant unconditionally, in the absence of his request that the charge not be given. 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."⁶ (Footnote omitted.) Id.

In my view, this court should overrule the Appellate Court's decision in Suplicki, and our decisions in Sinclair and Burke, to the extent they stand for the proposition 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 comply with § 54-84 (b) is not mandated by the statute's purpose and, further, is absolutely incompatible with our entrenched plain error jurisprudence. Turning first to the purpose of § 54-84 (b),⁷ I observe that it "statutorily established a new procedure concerning the rights...