Dissenting Rule: § 54-84(b) Timing Is Not “Plain Error” When the No‑Adverse‑Inference Instruction Is Given Preliminarily

1. Introduction

State v. Roman (Dissent) is a Connecticut Supreme Court dissent by Justice D’Auria responding to a majority decision that reversed Luiz Roman’s conviction because the trial court delivered the statutorily required “no adverse inference” instruction under General Statutes § 54-84 (b) in preliminary jury instructions (after empanelment but before evidence) and did not repeat it in the final charge.

The dissent’s core dispute is not whether the instruction matters—it accepts the instruction’s importance—but whether (1) § 54-84 (b) clearly requires the instruction to appear in the final charge, and (2) the omission from the final charge—despite having been given earlier—justifies reversal under the plain error doctrine (Practice Book § 60-5), including the majority’s choice to shift the burden to the State to prove harmlessness beyond a reasonable doubt.

2. Summary of the Opinion (Dissent)

Justice D’Auria would affirm the conviction. In his view:

  • § 54-84 (b) unambiguously requires that the jury be instructed not to draw an adverse inference from the defendant’s silence, but the statute is silent as to when during trial the instruction must be given.
  • Because the instruction was in fact given—albeit in preliminary instructions—the trial court did not commit an “obvious,” “not debatable” error warranting plain error reversal.
  • Even assuming a timing error, this is not a “total omission” case and should not trigger the constitutional harmlessness framework; the ordinary plain error “manifest injustice” standard should apply, and the defendant did not meet it.
  • If Connecticut policy favors repeating the instruction in the final charge, that guidance should be prospective and implemented via supervisory authority, not through plain error reversal.

3. Analysis

3.1. Precedents Cited

A. The statute and Connecticut “plain error” treatment of § 54-84 (b)

The dissent acknowledges that Connecticut has long treated complete failure to give the instruction (absent a defendant’s request to omit it) as plain error. It cites:

  • State v. Ruocco, 322 Conn. 796 (2016) and State v. Burke, 182 Conn. 330 (1980): cited for the proposition that failure to give the mandated instruction at all is plain error. The dissent uses these cases to distinguish “complete omission” from a “timing-only” dispute.
  • State v. Carter, 182 Conn. 580 (1980): cited as another “omission” example.
  • State v. Tatem, 194 Conn. 594 (1984): used to illustrate harmful error where the trial court deviated materially from the statutory wording (substituting “unreasonable” for “unfavorable”), reinforcing the dissent’s view that the harshest remedies historically fit cases where the substance was missing or distorted, not merely earlier in time.
  • State v. Michael T., 338 Conn. 705 (2021): invoked to support a more functional approach—minor variations or framing can be acceptable if the instruction is “at least as protective” and conveys the statute’s substance.

B. The key disputed precedent: State v. Hicks

The dissent squarely attacks the majority’s reliance on State v. Hicks, 97 Conn. App. 266 (2006), cert. denied, 280 Conn. 930 (2006), where the Appellate Court construed § 54-84 (b) to require inclusion of a specific no-adverse-inference instruction in the final charge, and treated the issue as reviewable under State v. Golding, 213 Conn. 233 (1989).

Justice D’Auria argues Hicks was wrongly decided because:

  • It treated the claim as a constitutional violation even though the constitutional right to the instruction arises only when requested, relying on Carter v. Kentucky, 450 U.S. 288 (1981), which held the instruction is constitutionally required upon request.
  • It inferred a timing mandate from practical considerations (the defendant might still testify; elapsed days; relevance at deliberations) without a clear statutory directive.
  • Its procedural posture (Golding review of an unpreserved instructional claim) is of diminished relevance after State v. Kitchens, 299 Conn. 447 (2011), which treats many unpreserved instructional claims as waived.

The dissent also cites Potvin v. Lincoln Service & Equipment Co., 298 Conn. 620 (2010), to emphasize that denial of certification in Hicks does not signal Supreme Court approval.

C. Statutory interpretation and legislative silence

The dissent’s interpretive method draws on:

  • State v. Ramos, 306 Conn. 125 (2012): quoted for the principle that legislative silence does not automatically equal ambiguity, but silence can create ambiguity when a missing subject would be necessary to effectuate a particular reading. The dissent uses this to argue that if timing were mandatory, the statute’s silence matters.
  • Curry v. Allan S. Goodman, Inc., 286 Conn. 390 (2008): cited for consulting legislative history and circumstances where the statute is silent on the issue at hand.

D. Constitutional backdrop: comment vs instruction

  • Griffin v. California, 380 U.S. 609 (1965): cited as the constitutional floor—prosecutorial or judicial comment on silence violates the constitution.
  • Bruno v. United States, 308 U.S. 287 (1939): discussed as a federal statute-based right (not constitutional) to the instruction, contrasted with Connecticut’s then-existing law.
  • State v. Branham, 171 Conn. 12 (1976): relied on to explain the pre-1977 landscape—no constitutional or statutory entitlement in Connecticut absent controlling statutory provisions—prompting the legislature to enact § 54-84 (b).
  • State v. Sinclair, 197 Conn. 574 (1985): cited as recognizing that § 54-84 (b) was proposed in response to Branham.

E. Plain error doctrine framing

The dissent relies on multiple cases to insist plain error is exceptional and must be “not debatable” and result in manifest injustice:

  • State v. Jamison, 320 Conn. 589 (2016)
  • State v. Diaz, 348 Conn. 750 (2024)
  • State v. Myers, 290 Conn. 278 (2009)
  • State v. Pierce, 269 Conn. 442 (2004)
  • Berchtold v. Maggi, 191 Conn. 266 (1983)
  • State v. Fagan, 280 Conn. 69 (2006)

F. “Law at the time of trial” and hierarchical courts

Responding to the majority’s assertion that “controlling law” is the law at the time of trial, the dissent discusses:

  • State v. Turner, 334 Conn. 660 (2020) (and its discussion of State v. Edwards, 325 Conn. 97 (2017), and State v. Porter, 241 Conn. 57 (1997)): used to explain that “time of trial” prevents post-trial legal changes from manufacturing plain error, not to require the Supreme Court to treat Appellate Court precedent as creating “patent error” for Supreme Court purposes.
  • Stuart v. Stuart, 297 Conn. 26 (2010) and State v. Samuels, 273 Conn. 541 (2005): cited to stress hierarchical principles—Supreme Court is not bound by Appellate Court decisions.
  • State v. Darryl W., 303 Conn. 353 (2012) and State v. Raeon A., 354 Conn. 815 (2026): invoked for the idea that a trial court’s statutory instruction cannot become plain error retroactively because of later judicial “gloss.”

G. Supervisory authority and post-Kitchens doctrinal confusion

The dissent situates the dispute within Connecticut’s evolving unpreserved-claim doctrines:

  • Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123 (2014): cited for cataloging routes for unpreserved claims (jurisdiction, Golding, plain error, supervisory authority).
  • State v. Kitchens, 299 Conn. 447 (2011) and State v. McClain, 324 Conn. 802 (2017): used to argue that Kitchens waiver has driven defendants to repackage constitutional instructional issues as plain error, distorting the doctrine.
  • State v. Carrion, 313 Conn. 823 (2014); State v. Medrano, 308 Conn. 604 (2013); and State v. Weatherspoon, 332 Conn. 531 (2019): cited to explain supervisory authority—sometimes prospective guidance without reversal, sometimes reversal to remedy perceived injustice.
  • State v. Kyle A., 348 Conn. 437 (2024): cited for the proposition that instructional plain error is “especially rare.”

3.2. Legal Reasoning

A. Textual point: “shall instruct the jury” does not specify timing

The dissent’s statutory argument is straightforward: § 54-84 (b) commands the court to give the instruction unless the accused requests otherwise, but it does not say the instruction must appear in the final charge. Because the statute is silent on timing, the dissent concludes: the majority’s timing mandate is at least “debatable,” defeating the “obvious and readily discernable error” prerequisite for plain error.

B. Legislative history and the legal landscape

The dissent ties § 54-84 (b)’s enactment to State v. Branham and its aftermath. In this account, the legislature’s central aim was to ensure the instruction is given (unless the defendant opts out), not to rigidly dictate when it must be delivered. The dissent emphasizes that nothing in the text or history “directly addresses timing,” suggesting legislative indifference to that question.

C. Functional concerns cut both ways (and may be tactical)

The dissent challenges the majority’s assumption that final-charge timing is the only way to effectuate the statute’s purpose. It reasons that:

  • Jurors may wonder about a defendant’s silence throughout trial, so an early instruction may reduce speculation during evidence as well.
  • Because § 54-84 (b) allows a defendant to request omission entirely, the dissent infers tactical complexity: some defendants might not want the instruction emphasized (or repeated) immediately before deliberations.

D. Plain error prong two: the dissent rejects burden-shifting here

The dissent views it as a category error to treat this as “total omission” simply because the final charge omitted the instruction. Since the jury received the full instruction earlier, Justice D’Auria would apply the conventional plain-error harm test— requiring the defendant to show “manifest injustice”—rather than requiring the State to prove harmlessness beyond a reasonable doubt.

E. Harmlessness in context (even under the majority’s lens)

The dissent disputes the majority’s characterization of evidentiary weakness. It highlights: (1) testimony that the defendant confessed to details before the cause of death was public, (2) the defendant’s mother’s recorded statement describing the “street” motive, and (3) evidence of inconsistent and false statements. Against that record, the dissent sees no realistic basis to believe the verdict hinged on adverse inferences from silence, particularly given the jury was expressly told early on not to draw such inferences.

F. The dissent’s proposed doctrinal “home”: supervisory authority, applied prospectively

The dissent’s concluding institutional point is that if Connecticut wants a clear rule that the instruction should be repeated in final instructions, the more coherent tool is supervisory authority (especially the “first category” prospective guidance discussed in State v. Weatherspoon), not plain error reversal in a case where the instruction was in fact given.

3.3. Impact

Although a dissent does not establish binding precedent, Justice D’Auria’s analysis sketches a competing framework with tangible implications:

  • Limits on plain error expansion: adopting the dissent’s approach would cabin plain error to clear statutory violations (complete omission or substantively defective instruction), rather than timing disputes inferred from policy judgments.
  • Burden allocation: it resists extending “harmless beyond a reasonable doubt” to timing-only § 54-84 (b) issues, potentially narrowing automatic or near-automatic reversals.
  • Procedural clarity after Kitchens: it warns that channeling waived instructional claims into plain error risks collapsing doctrinal boundaries between Golding-type review and plain error “reversibility.”
  • Prospective judicial administration: it encourages a forward-looking supervisory directive (repeat the instruction in the final charge unless the defendant requests otherwise) without undoing otherwise reliable verdicts.

4. Complex Concepts Simplified

  • No adverse inference instruction: a jury directive that it may not hold a defendant’s choice not to testify against him. Under § 54-84 (b), Connecticut requires the instruction unless the defendant asks the court not to give it.
  • Plain error (Practice Book § 60-5): a narrow doctrine allowing appellate reversal for unpreserved errors only when the error is obvious (“not debatable”) and so harmful that affirming would cause “manifest injustice.”
  • Golding review (State v. Golding): a framework historically used to review certain unpreserved constitutional claims on appeal. The dissent notes State v. Kitchens altered how unpreserved instructional constitutional claims are treated (often as waived), pushing litigants toward plain error arguments.
  • Harmless error vs. manifest injustice: “harmless beyond a reasonable doubt” is a demanding standard usually placed on the State after constitutional errors. “manifest injustice” is a higher hurdle for defendants seeking relief on unpreserved claims via plain error.
  • Supervisory authority: the Supreme Court’s power to regulate judicial procedure and ensure system-wide fairness. It can be used prospectively to set best practices without reversing past convictions unless necessary to protect integrity and public confidence.

5. Conclusion

Justice D’Auria’s dissent argues that § 54-84 (b) mandates the substance of the no-adverse-inference instruction but does not clearly mandate its timing, making reversal under the plain error doctrine improper when the jury did receive the instruction in preliminary charges. The dissent further contends that converting this timing dispute into a “total omission” case improperly shifts the burden to the State and risks diluting the extraordinary nature of plain error. If a final-charge timing rule is desirable, the dissent would implement it prospectively through supervisory authority rather than by undoing a conviction where the statutory instruction was actually delivered.