State v. Roman

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I cannot agree with the majority that the plain error doctrine requires this result. See Practice Book § 60-5. In particular, I cannot conclude that it is so clearly “not debatable” that § 54-84 (b) mandates that a trial court provide the no adverse inference instruction in its final instructions, as opposed to during any other portion of the trial, and that a court’s failure to do so constitutes patent error. In my view, Hicks, in which the Appellate Court considered the defendant’s unpreserved § 54-84 (b) claim as a constitutional claim reviewable under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), was wrongly decided. I also do not agree that it is appro- priate in this case to conclude that the trial court com- pletely omitted the instruction and therefore place the burden on the state to prove, beyond a reasonable doubt, that this nonconstitutional instructional error did not cause the defendant harm. Rather, I would apply the usual plain error standard and conclude that there is not a sufficient reason to justify reversing the defendant’s conviction, upon a finding of manifest injustice, when the instruction had in fact been provided to the jury. Section 54-84 (b) requires the trial court to give the no adverse inference instruction absent a request by the defendant to omit the instruction. The defendant does not need to request the instruction, but the statute is silent about when it must be given. Thus, although it certainly would have constituted patent error had the trial court neglected to provide the instruction to the jury at all, the court instructed the jury as the statute mandates by providing the required instruction, before the evidentiary portion of the trial began. That is more than the constitution demands. If this court concludes, as a matter of judicial policy, that the most appropriate and effective time for the trial court to provide this impor- tant, required instruction is in the final jury charge, after the defendant has elected not to testify and closer in time to jury deliberations, I would have no objection to that rule. I am not persuaded, however, that this rule is legislative policy, as the majority contends. See part II A of the majority opinion. More particularly, I can- not agree that it is so obviously legislative policy that it justifies reversing the defendant’s conviction under the plain error doctrine.

Although I have no difficulty reversing a conviction when there is a reason to question the fairness of the verdict, I believe doing so in the present case dilutes the extraordinary remedy of the plain error doctrine and trivializes the instances in which this court has affirmed convictions after finding harmless what I would consider more significant instructional or even constitutional errors. I therefore respectfully dissent.

I

Section 54-84 (b) provides: “Unless the accused requests otherwise, the trial court shall instruct the jury that they may draw no unfavorable inferences from the accused’s failure to testify. In cases tried to the court, no unfavorable inferences shall be drawn by the court from the accused’s silence.” The first sentence of subsection (b) clearly and unambiguously mandates that the court instruct the jury not to draw an unfavorable inference from the accused’s failure to testify. Accordingly, this court has held that, unless the defendant requests that the trial court not so instruct the jury, the failure to so instruct an empaneled jury is plain error. See, e.g., State v. Ruocco, 322 Conn. 796, 804, 144 A.3d 354 (2016); State v. Burke, 182 Conn. 330, 331–32, 438 A.2d 93 (1980). Although the statute’s text and legislative his- tory are clear that the trial court lacks discretion to omit the charge unless the accused so requests, as the majority agrees, § 54-84 (b) does not dictate when the trial court must so instruct the jury.

It is true “that silence does not necessarily equate to ambiguity.” (Internal quotation marks omitted.) State v. Ramos, 306 Conn. 125, 136, 49 A.3d 197 (2012).

“Rather, [i]n determining whether legislative silence ren- ders a statute ambiguous, we read the statute in context to determine whether the language is susceptible to more than one reasonable interpretation.” (Internal quotation marks omitted.) Id. “For example, silence may render a statute ambiguous when the missing subject reasonably is necessary to effectuate the provision as written.” Id. In my opinion, it is at least ambiguous whether the leg- islature, when it mandated that the trial court “instruct the jury” not to draw an adverse inference, intended that the court do so at a specific time. Even if we assume, as the majority concludes, that the statute in fact means that the court must deliver the instruction during its final charge, the “subject” (i.e., the timing) is “missing” from the statute and would be “necessary” to effectuate the majority’s interpretation. State v. Ramos, supra, 136. It is therefore appropriate, and I believe pertinent to the legislature’s intent, to look at the statute’s history in the context of the legal landscape at the time of its enactment. See, e.g., Curry v. Allan S. Goodman, Inc., 286 Conn. 390, 407, 944 A.2d 925 (2008) (when statute is silent with respect to issue at hand, we consider “the legislative history and circumstances surrounding its enactment . . . the legislative policy it was designed to implement, and . . . its relationship to existing legislation and [common-law] principles governing the same general subject matter” (internal quotation marks omitted)).

In State v. Branham, 171 Conn. 12, 15–16, 368 A.2d 63 (1976), this court held that, in the absence of control- ling statutory provisions, an accused is not entitled, constitutionally or statutorily, to an instruction that the jury may not draw an adverse inference from his failure to testify in his own defense.1 One year later, in 1977, the General Assembly took note of the legislative lacunae we had identified in Branham and passed No. 77-360 of the 1977 Public Acts, which was codified at General Statutes (Rev. to 1979) § 54-84 (b).2 State v. In reaching that conclusion, the court in Branham relied on Griffin v. California, 380 U.S. 609, 615, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) (comments by prosecutor or court about defendant’s failure to testify violate constitution), and declined to follow Bruno v. United States, 308 U.S. 287, 293–94, 60 S. Ct. 198, 84 L. Ed. 257 (1939) (accused can request jury instruction on adverse inference), which had been based not on the federal constitution but on a federal statute. See State v. Branham, supra, 171 Conn. 15.

Subsection (a) of § 54-84 which had been on the books for many years, derived from General Statutes (1887 Rev.) § 1623. Between 1867 and 1879, the statute provided that the “neglect of an accused person to testify should not be commented upon by the prosecuting attorney or the court.” State v. Williams, 90 Conn. 126, 132, 96 A. 370 (1916). Therefore, before 1879, it was improper for the court or the prosecu- tor to comment to the jury at all on the accused’s silence; see State v. Heno, 119 Conn. 29, 35, 174 A. 181 (1934); even to admonish the jury not to consider it. See General Statutes (1875 Rev.) tit. XX, c. 13, pt. 5, § 7 (“[n]or shall such neglect be alluded to, or commented upon by the prosecuting attorney, or by the court”).

In 1879, the legislature repealed General Statutes (1875 Rev.) tit. XX, c. 13, pt. 5, § 7, replacing it with what became § 1623, which provided that “the neglect or refusal of an accused party to testify shall not be commented upon to the court or jury.” Public Acts 1879, c. 69, § 1; see id., § 2. Until the 1977 amendment to the statute, this language was construed to prohibit only the prosecutor from commenting on the defendant’s silence to either the jury or to the court but not to prohibit the court itself from commenting to the jury on the defendant’s silence or from giving a charge on the matter. See State v. Annunziato, 154 Conn. 41, 43, 221 A.2d 57 (1966); State v. Heno, supra, 119 Conn. 35. Thus, even as it repealed the prohibition against any comment by the court and left in place the prohibition on comment by the prosecutor, the legislature never gave any indication of a concern about the proper timing of any comment by the court.

The original 1977 bill required that the trial court give the no unfavor- able inference charge only when requested to do so by the accused, which would have met the United States Supreme Court’s standard set a few Sinclair, 197 Conn. 574, 585 n.13, 586, 500 A.2d 539 (1985) (recognizing that § 54-84 (b) was proposed in response to holding in Branham).

Only a few years after the 1977 legislation, the United States Supreme Court held that a defendant has a federal constitutional right to a no adverse inference instruction, but only if he requests it. See Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981). Thus, in the five years between Branham and Carter, defendants’ rights had progressed from there being no right to an adverse inference instruction to having a fed- eral constitutional right to the instruction if requested and a statutory right to the instruction, even when not requested. Nothing in the text or legislative history of § 54-84 (b) directly addresses the timing of the mandatory instruction, however. This silence suggests to me that the legislature was concerned exclusively with ensuring that trial courts provide the no adverse inference instruction to the jury, unless the defendant “requests otherwise,” and not when, during a trial, the court must so instruct the jury. General Statutes § 54-84 (b).

Consistent with this understanding, I know of no con- trolling case, and the majority cites no case at all, suggest- ing that, when the defendant requests the instruction, and therefore has a constitutional right to it, he has a concomitant right to have that instruction delivered dur- ing the court’s final instructions. Cf. Townsend v. State, 934 N.E.2d 118, 131 (Ind. App. 2010) (trial court did not abuse its discretion in rejecting defendant’s request to years later in Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981). See House Bill No. 8092, 1977 Sess. An amendment eliminated this condition and, instead, required the court to give the charge unless the accused requested otherwise. See 20 H.R. Proc., Pt. 11, 1977 Sess., pp. 4543–44, remarks of Representative Robert G. Jaekle (discussing Substitute House Bill No. 77-8092, 1977 Sess., as amended by House Amendment Schedule A and Senate Amendment Schedule A. Senator Salvatore C. DePiano, in explaining the amended bill to his colleagues on the Senate floor, stated: “[T]he amendment merely makes the [c]ourt mandatorily give a charge to the jury that they can draw no unreasonable or unfavorable inference against a defendant who has not testified in his own behalf . . . .” 20 S. Proc., Pt. 5, 1977 Sess., p. 2068. give no adverse inference instruction in final charge to jury when substance of instruction had been covered in preliminary instructions because “whether [the jury] hears the instructions before or after the evidence is presented is of no relevance” (internal quotation marks omitted)). Thus, given the legislative silence regarding the timing of the instruction, it is not logical to conclude that a defendant who does not request the instruction or object to its omission, but is entitled to the instruction by statute, has a right to have the trial court deliver the unrequested instruction at a particular time.

The majority does not contend that the words “instruct the jury” in § 54-84 (b) clearly and unambiguously man- date that the trial court must do so during the court’s final instructions or violate the statute. Rather, although it assiduously avoids using the word “ambiguous,” the majority reasons that, when the legislature directed courts to “instruct the jury,” it could only have meant that “the prescribed instruction would be included in the final instructions” based on the contemporary use of jury instructions at the time of the statute’s enactment, the later evolution of the practice of providing preliminary instructions in this state’s courts, and the importance of the instruction itself. Part II A of the majority opinion. I do not disagree that the majority’s interpretation of the legislature’s silence as to the timing of the manda- tory jury admonition is reasonable. However, it is also reasonable to conclude that the legislature was, and remains, uninterested in constraining judicial discretion to determine when it is most appropriate and effective to instruct the jury not to draw an adverse inference. I find it difficult to believe, for example, that the legislature would object to a trial court’s instructing the jury imme- diately following a canvass of the defendant regarding his decision not to testify or after the defense rests but prior to closing arguments. By its construction of § 54-84 (b), however, the majority would have to conclude that providing the instruction at any time other than during “final” instructions patently violates the statute.

Indeed, the text of § 54-84 (b) itself does not present a binary choice between providing the instruction dur- ing preliminary or final instructions at all. Reasonable minds can disagree as to when it is most appropriate or effective for the trial court to give the instruction to the jury. In fact, the text of § 54-84 (b) contemplates that the defendant might, under some circumstances, have a tactical reason for asking the court not to give the instruction at all. See General Statutes § 54-84 (b) (court must instruct jury not to draw any unfavorable inferences from accused’s failure to testify “[u]nless the accused requests otherwise”). It follows, then, that there could be a tactical reason that a defendant, even if he is not opposed to the court’s giving the instruction prior to the close of the evidentiary portion of the trial, might not want it repeated, and his silence emphasized, in the court’s final instructions just before the jury begins its deliberations. It is therefore no surprise that neither the text nor the history of § 54-84 (b) manifests an intent by the legislature to mandate when, during a trial, the court must give the no adverse inference instruction. Even if I conceded, upon plenary review of the statute, that the majority’s interpretation is the most reasonable, at the very least, it is far from obvious—and, in plain error parlance, certainly “debatable”—that the statute requires the trial court to admonish the jury, during final instructions as opposed to earlier in the trial, not to draw any adverse inference from the defendant’s failure to testify. I do not believe that the plain error doctrine is the appropriate appellate vehicle for reviewing and correcting an unpreserved ruling that is arguably not incorrect in the first place. See State v. Pierce, 269 Conn. 442, 453, 849 A.2d 375 (2004). The statute only unam- biguously provides that “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). In the present case, the trial court complied with all that the express provisions of the statute require—and more than the constitution requires—by so instructing an empaneled jury. I would not conclude that the trial court committed a clear and obvious, patent and undebatable error by providing the instruction only during its pre- liminary instructions. See General Statutes § 54-84 (b); see also State v. Fagan, 280 Conn. 69, 88, 905 A.2d 1101 (2006) (compliance with express provisions of statute is not clear and obvious impropriety requiring reversal of judgment under plain error doctrine), cert. denied, 549 U.S. 1269, 127 S. Ct. 1491, 167 L. Ed. 2d 236 (2007). II

The majority contends that its construction of § 54-84 (b), and therefore its plain error analysis, gets a boost from the Appellate Court’s construction of § 54-84 (b) in Hicks, in which that court concluded that a trial court must include the no adverse inference instruction in its final jury charge because the statute’s “text is imbued with the interpretive gloss provided by authoritative case law, which includes Hicks.” Part II A of the majority opinion. This court has never held, or even suggested, that § 54-84 (b) provides that the instruction must be given at a particular time, or that the failure to give it during final instructions (as opposed to during pre- liminary instructions or at any other time) constitutes a constitutional violation, as the court in Hicks did. Yet, it is enough for the majority in the present case to reverse the defendant’s conviction when the Appellate Court in Hicks held that it was harmful constitutional error for the trial court to give the instruction only in its preliminary instructions.

The majority makes no legislative acquiescence argu- ment, however, and also acknowledges that “this court has not previously had occasion to consider whether the holding in Hicks is correct.”3 Id. Like the majority, therefore, I undertake a plenary review of the decision in Hicks, but, unlike the majority, I cannot conclude that the Appellate Court correctly decided Hicks. Regardless, Hicks is not binding on this court, and I cannot conclude that the existence of Hicks requires this court (as opposed to the Appellate Court) to conclude that the trial court committed patent error in the present case.

In State v. Hicks, supra, 97 Conn. App. 266, the trial court, in its preliminary instructions, instructed the jury: “The defendant has no obligation to offer any evi- dence or testimony or to take the [witness] stand, and if he chooses to do neither of those things nor any or all of those, you cannot draw any unfavorable inference against the defendant.” (Internal quotation marks omitted.) Id., 274. The defendant did not testify at his trial. Id., 268. In its final charge to the jury, the court stated: “[W]hen you’re deciding the facts, ladies and gentlemen, make sure that you consider them fairly, carefully, find them impartially, impartially without any consideration as to the effect that it may have on anyone who has testified, including the defendant, who didn’t testify. You’re not to draw any unfavorable inference. But what I’m driv- ing at is, it’s your finding of the facts that will control, and you’re not to be concerned about punishment in the event of a finding of guilty, you’re not to be concerned about what effect, if any, any of the witnesses may have in the final outcome of this case. You find the facts as you find them, fairly and impartially.” (Internal quotation marks omitted.) Id.

The Appellate Court in Hicks held that the trial court’s final instruction failed to comply with § 54-84 (b) and, in particular, was inadequate because, “[a]lthough it imme- diately follows mention of the fact that the defendant did not testify, the court’s instruction that the jury ‘not draw any unfavorable inference’ appears to be an instruction of general applicability, one that is perhaps related to the several instructions that immediately preceded it”; id., 272; and the statute requires a specific instruction that the jury cannot draw an unfavorable inference from the defendant’s failure to testify. Id., 273. The Appellate Court relied on two of its prior decisions, State v. Stew- art, 60 Conn. App. 301, 308–10, 759 A.2d 142 (2000), and State v. Vega, 36 Conn. App. 41, 46, 48, 646 A.2d 957 (1994), in holding that the requirement of § 54-84 (b) could not be satisfied either by instructions to venire panels or by preliminary instructions provided after the jury was seated and sworn but prior to the start of evi- dence. See State v. Hicks, supra, 97 Conn. App. 275–76. Regarding instructions to venire panels, the Appellate Court recited the reasoning of State v. Stewart, supra, Conn. App. 308–309, that the language of § 54-84 applies to a person on trial for a crime, which does not begin until the jury panel is selected and sworn, and that the statute directs the court to instruct the jury, not a pool of venirepersons from which the jury is to be drawn. See State v. Hicks, supra, 97 Conn. App. 276.4 The court in Hicks also rejected the state’s argument that § 54-84 (b) was satisfied because the trial court gave a specific no adverse inference instruction in its prelimi- nary instructions, after the jury was seated and sworn, and prior to the start of evidence. See id. The Appellate Court did not engage in the same statutory interpreta- tion exercise that the majority does today to ascertain the meaning of § 54-84 (b) or the legislature’s intent but, rather, reasoned that the preliminary instructions did not suffice to satisfy the statute because they were provided several days prior to the trial court’s delivery of its final charge, at a time when the court could not state with certainty that the defendant would exercise his right not to testify during the evidentiary phase of the trial. See id., 277.

The Appellate Court’s rationale in Hicks was not lim- ited to determining that the trial court had not com- plied with the express mandate of the statute, however. Rather, because the defendant in Hicks had not preserved his instructional claim of error, the Appellate Court reviewed it under State v. Golding, supra, 213 Conn. 239–40, and held that the defendant prevailed because he had “demonstrated that a constitutional violation clearly exist[ed] that clearly deprived him of a fair trial, and the state ha[d] failed to demonstrate [the] harmless- ness of the constitutional violation beyond a reasonable doubt.” State v. Hicks, supra, 97 Conn. App. 269. As I already explained, the defendant has no constitutional right to the instruction unless he requests it. Therefore, I believe Hicks incorrectly concluded that the defendant’s constitutional rights were violated when the court pro- vided the instruction, without request, prior to the close of evidence. Additionally, unlike the legal landscape at the time the Appellate Court decided Hicks, under the applicable law at the time of the defendant’s trial in the present case and thereafter, unpreserved instructional claims—including constitutional claims—are considered waived. See State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011). Thus, if we are truly considering whether Hicks was correctly decided, the defendant in Hicks would not have prevailed on his Golding claim under current law, in my view rendering Hicks of limited value in determining whether it was patent error under § 54-84 (b) to provide the instruction to the jury prior to the final jury charge.

Nonetheless, the majority concludes that the trial court’s failure to repeat the no adverse inference instruc- tion in its final charge was plain error because Hicks— an Appellate Court decision—bound the trial court at the time of trial, and, when a reviewing court applies the plain error doctrine, “[c]ontrolling law is the law in existence at the time of trial.” Part II of the majority opinion. I do not agree that this adage requires this court to reverse a murder conviction under the plain error doctrine in the present case, however. As the majority states, for purposes of the plain error doctrine, “whether an error is clear is premised on the law existing at the time of trial.” (Internal quotation marks omitted.) Id., quoting State v. Turner, 334 Conn. 660, 683, 224 A.3d 129 (2020). But we have applied this rule only in contexts in which the trial court’s ruling was correct at the time and would only be (plainly) erroneous based on a change in the law that occurred after the trial, which we have determined is not an appropriate application of the plain error rule. See State v. Turner, supra, 684–85.

In State v. Turner, supra, 334 Conn. 670–72, at the time of the defendant’s trial, this court had not yet decided whether cell phone data constituted the type of scientific evidence that required a hearing pursuant to State v. Porter, 241 Conn. 57, 689 A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct. 1384, 140 L. Ed. 2d 645 (1998), before a trial court could admit expert testimony about the data. The defendant in Turner did not challenge the admissibility of the cell phone data at trial. After the defendant’s trial, but while his appeal was pending before the Appellate Court, this court decided State v. Edwards, 325 Conn. 97, 156 A.3d 506 (2017), concluding that expert testimony regarding cell phone data is the type of scientific evidence that Porter con- templated. See id., 133. Thus, we held in Edwards that a Porter hearing is required, if requested, before a trial court may admit into evidence expert testimony about cell phone data. See id. The defendant in Edwards had raised the Porter issue at trial. Id., 118. The defendant in Turner had not. See State v. Turner, supra, 673.

In Turner, we chose the rule the majority quotes (“whether an error is clear is premised on the law exist- ing at the time of trial”; id., 683) in declining to adopt the federal plain error standard, which determines whether an error was clear based not on the law existing at the time of trial but “on the basis of the law existing at the time of appeal . . . .” Id., 682. We explained that, unlike the federal plain error rule, under which the clarity or obvious nature of the error is one of several factors that federal courts of appeals consider in the exercise of appellate discretion when determining whether to correct an error not raised at trial, “Connecticut’s plain error doctrine is a rule of reversibility, mandating rever- sal when plain error is found.” (Emphasis in original; internal quotation marks omitted.) Id., 685. In Turner, we held that, because we had not yet issued our deci- sion in Edwards at the time of the defendant’s trial in Turner, and therefore existing case law would not have guaranteed the defendant at his trial a right to a Porter hearing regarding cell phone data, we would not employ this state’s plain error doctrine to afford the defendant relief on his unpreserved claim. See id.5 It does not follow that applying the “time of trial” rule in the present context requires the reversal of a convic- tion on plain error grounds. I believe it is a misuse of the extraordinary remedy of the plain error doctrine for this court to decide that, because, at the time of trial, a lower court precedent (Hicks) “controlled” the trial court, the trial court committed a patent error—rather than determining whether an error is patent based on our own interpretation of the law. Applying the plain error doctrine in this way is inconsistent with our “hierarchical judicial system,” in which “this court has the final say on matters of Connecticut law and that the Appellate Court and Superior Court are bound by our precedent,” not the other way around. Stuart v. Stuart, 297 Conn. 26, 45–46, 996 A.2d 259 (2010); see also, e.g., State v. Samuels, 273 Conn. 541, 553 n.8, 871 A.2d 1005 (2005) (“[this court is] not bound by a decision of the Appellate Court”). I cannot justify casting a vote that would result in the reversal of a conviction on plain error grounds when I (1) disagree with the rationale of lower court precedent (Hicks) on which the majority bases its determination of plain error, and (2) find Hicks’ rationale to be of limited relevance and not binding on this court.

III

Even if I were to assume that the trial court erred by not repeating the no adverse inference instruction in its final charge to the jury, I cannot conclude, as the majority does, that this error should compel a reversal of the defendant’s conviction. The majority concludes first that a failure to provide the no adverse inference charge to the jury during the court’s final instructions is not an error that renders a trial so fundamentally unfair or unreliable that it requires automatic reversal. See part II B 1 of the majority opinion (overruling State v. Suplicki, 33 Conn. App. 126, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994)).

I agree with this. However, the majority still departs from the conventional second prong of the plain error standard, which requires the defendant to demonstrate that the error is “so harmful that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Jamison, 320 Conn. 589, 597, 134 A.3d 560 (2016). Instead, the majority applies the constitutional harmless error standard, which requires the state to establish, beyond a reason- able doubt, that there is no reasonable possibility that the jury was misled because of the trial court’s failure to provide the no adverse inference instruction a second time. Because the instruction was in fact provided to the jury—albeit earlier in the trial—I would not require the state to bear this heavy burden but instead would require the defendant to meet the manifest injustice standard that usually applies to plain error review. I recognize that we have invoked the constitutional harmless error standard in other cases in which we have found the trial court to have committed patent error regarding § 54-84 (b). However, a rote application of that standard to the present case just because the claim of error involves the same statute fails to examine critically the genuine dis- tinctions between the trial court’s errors in those cases and the error in this case. I consider today’s holding to constitute an unwarranted and unnecessary extension of the plain error doctrine, and I do not find persuasive the majority’s reasoning that the trial court’s preliminary instructions failed to sufficiently mitigate any potential harm created by omitting the instruction in the final jury charge.

This court has stated that, “ordinarily, under the sec- ond prong of the plain error test, it is the appellant’s bur- den to demonstrate that a failure to reverse the judgment would result in manifest injustice.” (Internal quotation marks omitted.) State v. Ruocco, supra, 322 Conn. 804 n.3. “We previously have determined, however, that, because the statutorily mandated no adverse inference instruction was intended to effectuate a fundamental constitutional right, unless the defendant or defense counsel requests that the charge not be given, when the trial court fails to give that instruction, the burden is on the state to demonstrate that the omission was harmless beyond a reasonable doubt.” Id., 804–805 n.3. Although § 54-84 (b) is a prophylactic measure intended to protect a constitutional right, it is actually more demanding than the relevant provisions of either the federal or state constitution. See Carter v. Kentucky, supra, 450 U.S. 305; State v. Sinclair, supra, 197 Conn. 585. The accused has a constitutional right to the charge when requested; see Carter v. Kentucky, supra, 305; and an unconditional statutory right to the instruction, unless he requests otherwise. See General Statutes § 54-84 (b). However, as I ready explained, neither this court nor the legislature has ever determined that the defendant has a constitutional or statutory right to the instruction at a specific time.

The purpose of the statute is to limit juror speculation about the meaning of the defendant’s silence, which “exacts an impermissible toll on the full and free exercise of the privilege” against self-incrimination. Carter v. Kentucky, supra, 450 U.S. 305. It may be appropriate to place this heavier burden on the state when the trial court fails to completely “instruct the jury that [it] may draw no unfavorable inferences from the accused’s fail- ure to testify”; General Statutes § 54-84 (b); see State v. Sinclair, supra, 197 Conn. 584; or when the court has deviated so significantly from the statute’s language that the court’s instruction fails to convey the substantive meaning of the statute. See, e.g., State v. Tatem, 194 Conn. 594, 600–601, 483 A.2d 1087 (1984) (it was harm- ful error when trial court replaced “ ‘unfavorable’ ” with “ ‘unreasonable’ ” in statutory language). However, the jury in the present case was provided with an instruction from the court that matched the statutory requirements. The majority contends that the trial court’s failure to repeat the no adverse inference instruction in its final jury charge makes this a total “noncompliance” or “total omission” case on par with other § 54-84 (b) cases in which the trial court completely neglected to instruct the jury as to the implications of the defendant’s decision not to testify. See, e.g., State v. Ruocco, supra, 322 Conn. 802; State v. Carter, 182 Conn. 580, 581, 438 A.2d 778 (1980); State v. Burke, supra, 182 Conn. 333. But that is only because the majority has engineered its own definition of the phrase, “[a] total omission occurs if the final jury instructions contain nothing resembling the no adverse inference instruction . . . .” Footnote 19 of the majority opinion. I can just as easily define total “noncompliance” or “total omission” to exclude cases in which the trial court has provided the instruction, albeit at an earlier time in the trial.

Although we have not recognized in our case law an exception to the manifest injustice standard other than when the court finds a violation of § 54-84 (b), I am not of the view that any violation of the statute that this court deems to be error should justify the dramatic burden shift identified in Ruocco. See State v. Ruocco, supra, 322 Conn. 804 n.3; cf. State v. Michael T., 338 Conn. 705, 737, 259 A.3d 617 (2021) (“we can perceive no reason why the legislature would have wanted to bar trial courts from deviating from the specific language of the statute when instructing the jury, as long as the courts give an instruction that is at least as protective of the defendant’s constitutional right as the statutory language”). In particular, I do not believe that placing the constitutional harmless error burden on the state is either appropriate under our plain error jurisprudence, or required by the statute’s purpose, when the trial court has provided the instruction in full, without request, but has only not repeated the instruction in its final charge, also without request or objection.

Instead, in assessing whether the timing of the statu- torily required instruction was harmful error, I would apply the usual manifest injustice prong of the plain error doctrine, requiring the defendant to demonstrate that the trial court’s failure to repeat the instruction during its final charge “affect[ed] the fairness and integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Jamison, supra, 320 Conn. 596. A reviewing court should consider whether, in the context of the instructions provided to the jury as a whole, the trial court adequately conveyed the sub- stance of the § 54-84 (b) instruction. See, e.g., State v. Michael T., supra, 338 Conn. 738 (minor deviation from specific wording of § 54-84 (b) is not erroneous so long as instruction conveys statute’s substantive meaning). I do not believe that cases such as this one, in which the court provided the mandated instruction in full, and in which only the timing of the instruction is at issue, fall within that unique class of instructional error cases that requires reversal of the judgment without the demonstra- tion of manifest injustice that the plain error doctrine typically requires. In view of the instructions given as a whole, including those provided before the start of evidence, I cannot conclude that a failure to reverse the judgment in this case will result in manifest injustice. The majority cites three justifications for finding that the trial court’s preliminary instructions did not render the omission from the final instructions harmless: (1) the distinct purposes of preliminary and final instruc- tions; (2) the risk that the jurors would not remember and follow the preliminary instructions; and (3) the risk of overall confusion created by the discrepancy between the preliminary and final instructions.

I agree with the majority that preliminary instructions and those given after evidence and arguments serve dif- ferent purposes and that the former cannot supersede the latter. However, nothing in the trial court’s final instructions to the jury here contradicted the no adverse inference instruction the court provided in its prelimi- nary instructions; nor did the final instructions contain language that misstated the mandatory instruction or could have possibly confused the jury. Additionally, although the preliminary and final instructions given here were separated by eight days, we routinely rely on the assumption that jurors listen to and follow the trial court’s instructions. See, e.g., State v. Ancona, 256 Conn. 214, 219, 772 A.2d 571 (2001) (“[u]nless there is evidence to the contrary, the jury is presumed to follow the court’s instructions” (internal quotation marks omitted)). I do not believe we should depart from this assumption because there were days separating the court’s instruction—preliminary, curative, or otherwise substantive—and the start of deliberations.

The majority posits that the statute’s purpose, which is to minimize juror speculation during deliberations, is not served when the instruction is provided many days before the deliberations begin, and, therefore, the jurors during those deliberations “might speculate about the defendant’s decision not to testify.” Part II B 2 of the majority opinion. This is at least debatable. That jurors will speculate about a defendant’s decision not to testify only when they are about to begin delibera- tions is itself speculative, in my mind, or at least not provable. Whether they will hear from the defendant is just as likely to be going through the jurors’ minds throughout the trial, including during the state’s case. Giving this instruction at the beginning, and putting to bed any speculation about the defendant’s decision to testify before he has made that decision, may also effec- tively serve to minimize juror speculation throughout the presentation of evidence and during deliberations. Perhaps it is best that the court provide the instruction at both times, unless the defendant objects. But, as I see it, the majority is grafting onto the statutory mandate its own determination of when an instruction would be most beneficial or effective for the jury, which is not required by the statute. Neither is it appropriate to enforce this policy preference through the plain error doctrine by reversing the defendant’s conviction. See part IV of this opinion.

The majority also points to the potential confusion created by the omission of an instruction from the final charge that had been given in the preliminary instruc- tions, citing to State v. Vega, supra, 36 Conn. App. 48, in which the Appellate Court was concerned that the jury might have been misled by the trial court’s final instructions, which failed to properly convey the requi- site information to the jury. However, in Vega, the final instruction included a suggestion that the jury could “draw a fair or just, although unfavorable or adverse, inference from the defendant’s failure to testify.” Id. I do not believe it is at all likely, probable, or even realistic that the jury in the present case was similarly confused, or that the jury might have somehow believed that, because the instruction was not repeated in the final charge, the jury was released from the admonition not to draw unfavorable inferences from the defendant’s decision not to testify.

Further, the majority concludes that the strength and nature of the state’s evidence of guilt in this case were not “ ‘so ironclad’ ” that the trial court could consider the alleged instructional error harmless because there was a reasonable possibility that the jury might have consid- ered the defendant’s choice not to testify in reaching its verdict. The majority points to the lack of physical evidence linking the defendant to the murder and the fact that the state’s theory of guilt relied heavily on the defendant’s prior statements, which were inconsistent with other evidence, and his prior confession, which the defendant, by not testifying, did not rebut. In the majority’s view, therefore, the state’s case invited the jury to question how the defendant would respond to the state’s arguments and therefore speculate about the defendant’s choice not to testify.

I find the state’s case here significantly stronger than the majority represents when forced to measure the “strength and nature of the state’s evidence of guilt” against the court’s failure to repeat the no adverse infer- ence instruction during its final instructions to the jury. Part II B 2 of the majority opinion. The state presented the testimony of Jose Cruz Correra (Cruz), to whom the defendant had confessed that he had been with the vic- tim when a “problem” arose, had taken the victim to a factory, made him kneel, and shot him in the head. This confession came before the police publicized the cause of the victim’s death. The state played for the jury a recorded interview between Detective Jorge Cintron and the defendant’s mother, during which the defendant’s mother told the detective that the defendant had told her, when she asked what the victim had taken, that it was “none of [her] business” and that the victim “took something that didn’t belong to him, and he owed it to the streets. It happened because it had to happen. . . . [H]e did things in the street, and they made him pay.” The jury was entitled to find this statement consistent with Cruz’ testimony that the defendant had described a “problem” that arose. The state also presented evidence that the defendant had made inconsistent statements to his mother and to the police, and that contradicted surveillance video footage, and falsely claimed to have seen the victim alive after the shooting.

In sum, even employing the majority’s standard for constitutional harm, which I maintain is not the correct standard, in light of the strength of the state’s factual case, I cannot conclude that the trial court’s failure to repeat the no adverse inference instruction was so harm- ful that it warrants reversal of the defendant’s conviction because a failure to do so would “threaten to erode our system of justice and work a serious and manifest injus- tice on the aggrieved party.” State v. Myers, 290 Conn. 278, 289, 963 A.2d 11 (2009). I do not find the majority’s conclusion—that reversal of the defendant’s otherwise valid conviction is warranted here because the state could not prove that the trial court’s failure to repeat the no adverse inference instruction in its final charge was harmless beyond a reasonable doubt—compatible with either the mandate of the statute, its purpose, or our plain error jurisprudence.

IV

The reason I disagree with the majority and have cho- sen to write separately is that I believe that the explana- tion provided for invoking the plain error doctrine in the present case perpetuates confusion in our case law regarding the already opaque doctrines that guide our treatment of unpreserved claims on appeal. I believe that this court (myself included) too often succumbs to employing labels at the expense of analysis, which, in a case such as this one, has ultimately broadened access to an avenue for review and relief that are supposed to be reserved for truly exceptional claims. Even if the § 54-84 (b) instruction belongs in the final jury charge, I do not believe this case presents a truly exceptional claim of error. I am confounded by the fact that this court (myself included) routinely affirms convictions, finding no harm or no manifest injustice in cases that, in my view, involve much more significant errors than the majority believes occurred here.

In Blumberg Associates Worldwide, Inc. v. Brown & Brown of Connecticut, Inc., 311 Conn. 123, 161–62, 84 A.3d 840 (2014), we surveyed and clarified the doctrines we employ to review unpreserved claims on appeal: (1) claims involving subject matter jurisdiction; (2) claims involving constitutional violations reviewable under State v. Golding, supra, 213 Conn. 239–40; (3) claims subject to reversal under the plain error doctrine; and (4) circumstances that otherwise justify review as the exer- cise of our supervisory authority over the administration of justice. In my view, this court’s decision in State v. Kitchens, supra, 299 Conn. 482–83, has contributed significantly to the confusion and inconstancy of the application of these doctrines. Putting aside the merits and demerits of that controversial four to three decision to preclude Golding review of instructional claims waived at trial, an unquestionable byproduct of this court’s decision in Kitchens and subsequent decision in State v. McClain, 324 Conn. 802, 812, 155 A.3d 209 (2017) (Kitchens waiver does not preclude appellate relief under plain error doctrine), is that our review of unpreserved constitutional instructional claims of error that would otherwise be brought under Golding is now limited to the plain error or supervisory authority doctrines. A sam- pling of appeals that have come before this court in just the past two years demonstrates how prevalent requests for plain error review of constitutional instructional claims have become. See, e.g., State v. Anthony V., 354 Conn. 255, 260, 350 A.3d 1128 (2026) (defendant sought review of unpreserved claim of constitutionally deficient jury instruction under plain error doctrine); State v. Christon M., 354 Conn. 1, 6 n.4, 348 A.3d 450 (2026) (defendant sought review of waived claim of constitution- ally inadequate instruction under plain error doctrine); State v. Mebane, 350 Conn. 483, 510–11, 325 A.3d 168 (2024) (defendant sought review of waived instructional claim under plain error doctrine); State v. Daren Y., 350 Conn. 393, 420–21, 324 A.3d 734 (2024) (same). But cf. State v. McClain, supra, 821–22 (Rogers, C. J., concur- ring) (plain error reversal is inadequate substitute for regular appellate review of claims of constitutional error in jury instructions and is not “hospitable framework” to advance claims that are novel or success of which is dependent on overruling existing precedent).

The defendant in the present case did not preserve his claim of instructional error at trial. After the close of briefing to this court, his appellate counsel moved for permission to file a supplemental brief addressing this unpreserved claim, which he had “failed to raise in his principal brief regarding the trial court’s omission of a no adverse inference instruction during its final charge to the jury, as mandated under General Statutes § 54-84 (b).” The state did not oppose counsel’s motion, and this court granted it.

In Connecticut, an unpreserved claim that the trial court failed to instruct the jury in its final charge that it may draw no adverse inference from the defendant’s failure to testify presents a unique challenge to our con- ventional review of unpreserved instructional claims. The defendant makes no claim under the federal or state constitution because the instruction is constitutionally required only when the defendant has requested it; see Carter v. Kentucky, supra, 450 U.S. 305; State v. Sin- clair, supra, 197 Conn. 585; and not at any particular time. Nonetheless, any constitutional claim is unpre- served because the defense did not request the instruction or object to its omission from the final charge.

Section 54-84 (b) creates a statutory right to the instruction that is not conditioned on the defendant’s request for it. Although § 54-84 (b) is more protective than either the federal or state constitution, our prece- dents have elevated a defendant’s right to the instruction under § 54-84 (b) to one “of constitutional dimension” because the statute serves to effectuate a fundamental constitutional right. See, e.g., State v. Ruocco, supra, 322 Conn. 804. This characterization afforded the defen- dant in Hicks review under Golding. See State v. Hicks, supra, 97 Conn. App. 269. As I have pointed out, today, constitutional claims of instructional error pursuant to § 54-84 (b) based on when the no adverse inference charge should be given, like the defendant’s claim in Hicks, would be considered waived. See State v. Kitchens, supra, Conn. 482–83.

As the majority notes, this court has justified review of § 54-84 (b) claims for plain error, which cannot be waived, because the statute serves to effectuate the fundamental constitutional right of a defendant not to testify at his criminal trial. See, e.g., State v. Burke, supra, 182 Conn. 331–32 (“[w]here the legislature has chosen specific means to effectuate a fundamental right, failure to follow the mandatory provisions of the statute is plain error, reviewable by this court”). Effectively then, by calling this plain error but then requiring the state to demonstrate harmlessness beyond a reasonable doubt, this court has simply converted what would be traditional Golding review into the plain error doctrine. The result is a muddling of these doctrines for reviewing unpreserved claims and, in particular, a dilution of the plain error doctrine that I believe warrants more criti- cal review by this court. It will be challenging to confine shifting this burden in our plain error jurisprudence only to § 54-84 (b) claims (but apparently to all § 54-84 (b) claims) rather than applying it to any claim of error involving an instruction that prophylactically protects a defendant’s constitutional rights.

As the majority properly recites, under the plain error doctrine, the defendant must first “establish that there was an obvious and readily discernable error . . . .” (Inter- nal quotation marks omitted.) State v. Diaz, 348 Conn. 750, 762, 311 A.3d 714 (2024); see part II of the majority opinion. The error must be “obvious in the sense of not debatable.” (Internal quotation marks omitted.) State v. Jamison, supra, 320 Conn. 596. “Second, the defen- dant must establish that the . . . error was so harmful or prejudicial that it resulted in manifest injustice.” (Internal quotation marks omitted.) State v. Diaz, supra, 763. Thus, an obvious error is a prerequisite for relief under the plain error doctrine but is insufficient for its application because “[p]lain error review is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial pro- ceedings.” (Internal quotation marks omitted.) State v. Myers, supra, 290 Conn. 287–88.

This account of the plain error doctrine, codified at Practice Book § 60-5, hardly scratches the surface, how- ever. This court’s past descriptions of the plain error doctrine and the appropriate circumstances for its appli- cation are so replete with synonyms for “extraordinary” that they warrant a prominent display in any opinion.

For example, we have described a reversal of a judgment on plain error grounds as an “extraordinary remedy used by appellate courts to rectify errors committed at trial that . . . are of such monumental proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party.” (Empha- sis added.) Id., 289. This court has also observed that the plain error doctrine should be “invoked sparingly” and only when the error “directly affect[s] the outcome of the case.” Berchtold v. Maggi, 191 Conn. 266, 274, 464 A.2d 1 (1983). “Under this rubric, [a]n important factor in determining whether to invoke the plain error doctrine is whether the claimed error result[ed] in an unreliable verdict or a miscarriage of justice.” (Internal quotation marks omitted.) State v. Pierce, supra, 269 Conn. 450. It has been said that “[t]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibil- ity.” (Internal quotation marks omitted.) State v. Myers, supra, 290 Conn. 289. This aphorism is often stated but not frequently well understood, leading commentators to state that courts “sometimes blur this distinction with the use of sloppy language.” E. Prescott & J. Lavoie, Connecticut Appellate Practice & Procedure § 8-2:4, p. 502 (8th Ed. 2023). What this adage means is that the plain error doctrine “is a doctrine that this court invokes in order to rectify a trial court ruling that, although either not properly preserved or never raised in the trial court, nonetheless requires reversal of the trial court’s judgment, for reasons of policy.” (Internal quotation marks omitted.) State v. Myers, supra, 289.

If our law is settled that unpreserved claims of instruc- tional constitutional error are waived, rather than shoehorning the defendant’s claim into the plain error doctrine, as he asks us to do and as the majority has done, I think this case is more appropriately viewed as an exercise of our supervisory authority. The majority determines that the legislature intended to require the no adverse inference instruction to be given during final jury instructions and insists that the timing of the instruction “must be aligned with its fundamental purpose, which is to minimize juror speculation during jury deliberations,” and that “it does not serve that purpose to provide the instruction many days before deliberations begin.” Part II B 2 of the majority opinion. As a matter of judicial policy, I might agree. However, neither the statute’s plain language nor its history mandates the precise tim- ing of the instruction as a matter of legislative policy. Therefore, consistent with my view that Hicks was not correctly decided, I cannot conclude that it was patent error for the trial court to have provided the no adverse inference instruction only in its preliminary instruc- tions to the jury. See State v. Kyle A., 348 Conn. 437, 447–48, 307 A.3d 249 (2024) (jury instruction was not improper simply because it was not consistent with bet- ter practice of including elements of intended crime and noting that it is “especially rare for a jury instruction to be so clearly improper that our courts have deemed plain error review necessary to correct it”). In a case in which the jury received the statutorily—although not consti- tutionally—mandated no adverse inference instruction without request and without objection to its omission in the court’s final instructions, and in light of the many cases in which we have upheld convictions notwithstand- ing what I would consider greater transgressions on the rights of defendants, I cannot conclude that any error here rendered the verdict in this case “unreliable” or that an affirmance of the judgment would constitute a “miscarriage of justice.” (Internal quotation marks omitted.) State v. Pierce, supra, 269 Conn. 450.

Determining the proper timing of a jury instruction would, however, constitute an appropriate exercise of our supervisory authority. See, e.g., State v. Carrion, 313 Conn. 823, 849, 100 A.3d 361 (2014) (exercising supervisory authority to direct trial courts to refrain from using certain language in jury instruction); State v. Medrano, 308 Conn. 604, 631, 65 A.3d 503 (2013) (exercising supervisory authority to direct trial courts to refrain from instructing jurors, when defendant testifies, that they may consider defendant’s interest in outcome of case and importance to him of trial’s outcome). When exercising our supervisory authority to provide instruc- tional guidance to trial courts, our cases fall into two categories. “In the first category are cases wherein we have utilized our supervisory power to articulate a pro- cedural rule as a matter of judicial policy, either as [a] holding or dictum, but without reversing [the underlying judgment] or portions thereof . . . . In the second cat- egory are cases wherein we have utilized our supervisory powers to articulate a rule or otherwise take measures necessary to remedy a perceived injustice with respect to a preserved or unpreserved claim on appeal.” (Internal quotation marks omitted.) State v. Weatherspoon, 332 Conn. 531, 552–53, 212 A.3d 208 (2019). When cases fall into the first category, “we are free to invoke our super- visory authority prospectively when prudence and good sense so dictate.” State v. Carrion, supra, 852. When a case falls into the second category, and we are asked to reverse a conviction under our supervisory authority, the defendant must meet a more demanding standard and establish that the invocation of the extraordinary remedy of reversal of his conviction is necessary to protect the integrity of a particular trial and the perceived fairness of the judicial system as a whole—a stark contrast from placing the burden on the state to prove harmlessness beyond a reasonable doubt. Id., 851.

Just as I conclude in part III of this opinion that the defendant cannot meet the manifest injustice standard, similarly, I would not conclude that the defendant can meet the “second category” standard in the present case to justify a reversal of his conviction using our supervi- sory authority. See State v. Weatherspoon, supra, 332 Conn. 552. The majority has essentially imposed a rule of judicial policy that neither the constitution nor the legislature explicitly demands, and reverses a convic- tion based on that judicial policy without requiring the defendant to establish that this extraordinary remedy is required to protect the integrity and fairness of his trial and the judicial system. However, it would be appropriate for this court to determine that prudence and good sense require the § 54-84 (b) instruction to be given in final jury instructions and to exercise its supervisory authority to provide prospective guidance to trial courts regarding the appropriate timing of the instruction.

Accordingly, I respectfully dissent.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ State v. Roman MULLINS, C. J., concurring in the judgment. I concur in the result reached by the majority, which reverses the judgment of conviction. I write separately to address a concern that, in my view, warrants this court’s careful attention in a future case that properly presents the issue. That concern is that we are expanding the scope of what is reversible under the plain error doctrine for unpreserved claims involving the no adverse inference jury instruction mandated by General Statutes § 54-84 (b). In cases too numerous to count, this court has been clear that the plain error doctrine is a rule of revers- ibility; see, e.g., State v. Kyle A., 348 Conn. 437, 445, 307 A.3d 249 (2024); and that plain error review should be reserved for “truly extraordinary” circumstances. (Internal quotation marks omitted.) Id., 448–49; see, e.g., State v. Ruocco, 322 Conn. 796, 803, 144 A.3d 354 (2016). To meet that high hurdle, the defendant typically must demonstrate that (1) there was an obvious error, and (2) failure to reverse the conviction would result in manifest injustice. See, e.g., State v. Blaine, 334 Conn. 298, 306, 221 A.3d 798 (2019). In Ruocco, however, this court explained that, under the second prong of the plain error test for unpreserved claims involving the no adverse inference instruction, the state is usu- ally required to demonstrate that the omission of the instruction was harmless beyond a reasonable doubt.

See State v. Ruocco, supra, 804–805 n.3. I question whether, for purposes of plain error, that remains the appropriate test to apply to an unpreserved claim that the trial court violated § 54-84 (b). Specifically, I am not convinced that, after State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), and State v. McClain, 324 Conn. 802, 812, 815, 155 A.3d 209 (2017), we should be applying the harmless error standard to an unpreserved instructional error claim.1

In Kitchens, this court concluded that a criminal defen- dant’s unpreserved claim of instructional error is deemed State v. Roman implicitly waived and, therefore, is not subject to review under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), when, as in the present case, defense counsel has had a meaningful opportunity to review the proposed instructions. See State v. Kitchens, supra, Conn. 482–83. Then, in McClain, we clarified that a Kitchens waiver limited the review available for an unpreserved instructional error claim to reversal for plain error if the defendant shows that the error is clear and that a failure to reverse the judgment would result in manifest injustice. See State v. McClain, supra, 324 Conn. 812, 815. Yet, in considering an unpreserved claim of trial court noncompliance with § 54-84 (b) after Kitchens was decided, this court concluded, without mentioning Kitchens, that “[t]he applicable test requires the state to prove beyond a reasonable doubt that, from the view- point of the charge as a whole, there is no reasonable possibility that the jury was misled.” (Internal quota- tion marks omitted.) State v. Ruocco, supra, 322 Conn. 804. Accordingly, Ruocco applied the harmless error standard applicable under Golding to an unpreserved instructional error claim that would not be entitled to Golding review due to a Kitchens waiver. The majority refers to this incongruity as a “doctrinal idiosyncrasy . . . .” Part II B 2 of the majority opinion. I doubt the wisdom of continuing this course.

Nevertheless, because the parties have not challenged this court’s conclusion in Ruocco, I am constrained to apply the test set forth in that case. Under that test, I cannot conclude that there is no reasonable possibility that the jury was misled. Accordingly, I concur in the judgment. under the plain error doctrine. See footnote 17 of the majority opinion and accompanying text. In my view, however, the question is whether, after Kitchens and McClain, an unpreserved instructional error claim that has been implicitly waived is still subject to harmless error analy- sis. I think that we need to reconcile Ruocco and its predecessors with Kitchens and McClain.

************************************************ The “officially released” date that appears near the beginning of an opinion is the date the opinion will be published in the Connecticut Law Journal or the date it is released as a slip opinion. The operative date for the beginning of all time periods for the filing of postopinion motions and petitions for certification is the “officially released” date appearing in the opinion.

All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports. In the event of discrepancies between the advance release version of an opinion and the version appearing in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports, the latest version is to be considered authoritative.

The syllabus and procedural history accompanying an opinion that appear in the Connecticut Law Journal and subsequently in the Connecticut Reports or Connecticut Appellate Reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be reproduced or distributed without the express written permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ************************************************ STATE OF CONNECTICUT v. LUIZ ROMAN (SC 20993)

Mullins, C. J., and McDonald, D’Auria, Ecker, Alexander, Dannehy and Bright, Js.

Syllabus Pursuant to statute (§ 54-84 (b)), “[u]nless the accused requests otherwise, [a trial] court shall instruct the [jurors] that they may draw no unfavorable inferences from the accused’s failure to testify.”

Convicted of murder in connection with the shooting death of the victim, the defendant appealed to this court. During jury selection, the trial court had given a no adverse inference instruction to each of the venire panels that were assembled for the defendant’s trial. The court also gave a no adverse inference instruction to the jury once the jury was sworn in, before the start of evidence, as part of the court’s preliminary instructions. At trial, the state introduced the testimony of various detectives, among others, as well as surveillance footage depicting the defendant and the victim on the day of the murder. Because there was a lack of physical evidence connecting the defendant to the murder, however, the state relied primarily on prior statements that the defendant had given to the police, among others, to highlight inconsistencies between those statements and the other evidence introduced at trial. The defendant did not testify, and the trial court did not include the no adverse inference instruction required by § 54-84 (b) in its final jury instructions given after the close of evidence but before the jury began its deliberations. On appeal to this court, the defendant claimed that the trial court had committed plain error by omitting the no adverse inference instruction required by § 54-84 (b) from its final jury instructions. Held: The trial court committed plain error by omitting the no adverse inference instruction required by § 54-84 (b) from its final jury instructions, and, accordingly, this court reversed the judgment of conviction and remanded the case for a new trial.

The omission of the no adverse inference instruction from the final jury instructions was an obvious and readily discernable error, as the trial court overlooked controlling Appellate Court precedent requiring that such an instruction be included in the trial court’s final jury instructions. In State v. Hicks (97 Conn. App. 266), the Appellate Court clearly and unequivocally held that the no adverse inference instruction required by § 54-84 (b) must be included in a court’s final jury instructions and that a no adverse inference instruction in a court’s preliminary instructions is an inadequate substitute, and that holding has not been overruled or undermined since Hicks was decided in 2006.

Although this court has not previously considered whether the holding in Hicks is correct, this court did so as a part of its plain error analysis and concluded that the Appellate Court had properly construed § 54-84 (b) to require a trial court to give a no adverse inference instruction as part of its final jury instructions, immediately prior to the commencement of the jury’s deliberations.

Although § 54-84 (b) does not explicitly state when the no adverse inference instruction must be given, a historical review of that statute and its predeces- sors, and the fact that the statute was intended to effectuate a defendant’s fundamental constitutional right not to testify, supported the conclusion that the legislature intended that the required no adverse inference instruc- tion be included in a court’s final charge to the jury, unless the defendant requests otherwise.

This court nevertheless rejected the defendant’s argument, premised on the Appellate Court’s decision in State v. Suplicki (33 Conn. App. 126), that the complete omission of the no adverse inference instruction from the jury instructions required automatic reversal of his conviction.

The trial court’s failure to give the no adverse inference instruction did not constitute the type of structural error that was exempt from harmless error analysis, as it was not the type of error that affected the framework within which the trial proceeded or that pervaded the entire proceeding, and a rule requiring the automatic reversal of a conviction was unnecessary to protect the interest safeguarded by § 54-84 (b), namely, a defendant’s constitutional right not to testify.

Moreover, this court has previously held that the failure to give a no adverse inference instruction when requested by the defendant, in violation of United States Supreme Court precedent, did not constitute structural error and was subject to harmless error analysis, and all federal courts, and the vast majority of state courts, have agreed that such an error is not structural error but, rather, is subject to harmless error review.

Accordingly, this court overruled Suplicki to the extent that it required the automatic reversal of a conviction when a trial court’s jury instructions fail to comply with § 54-84 (b).

This court clarified that the second stage of the plain error analysis for claims involving noncompliance with § 54-84 (b) should be conducted under the constitutional harmless error rubric, pursuant to which the state must establish, beyond a reasonable doubt, that there is no reasonable possibility that the jury was misled as a result of the instructional error.

In the present case, the state failed to demonstrate that the trial court’s omission of the no adverse inference instruction was harmless beyond a reasonable doubt.

It was of no consequence that, in its final instructions, the trial court instructed the jury with respect to the defendant’s presumption of inno- cence, the state’s burden of proof, and the generic prohibition against guesswork, as those directives failed to address the harm that might flow from the jurors’ speculation about the meaning of the defendant’s silence and the risk that the jurors might improperly give evidentiary weight to the defendant’s decision not to testify.

It also was of no consequence that the trial court gave a no adverse inference instruction to the venire panels during jury selection and to the jury in its preliminary instructions, as final jury instructions serve a crucial purpose distinct from that of preliminary instructions, there was a risk that a jury might not remember and follow the instruction if it were given during jury selection or in the court’s preliminary instructions but omitted from the court’s final instructions, and the inclusion of the instruction in the pre- liminary instructions and exclusion thereof in the final instructions were just as likely to result in overall confusion as coherency.

With respect to the strength and nature of the state’s evidence of guilt, the state’s theory of guilt relied heavily on the defendant’s prior statements, such as his descriptions of his movements on the day the victim disappeared, which were inconsistent with other evidence adduced at trial, and the nature of that evidence and the state’s theory would have invited the jury to specu- late why the defendant had chosen not to take the stand to explain his prior statements and could reasonably have led the jury to draw an adverse infer- ence from his failure to testify.

(One justice concurring separately; one justice dissenting) Argued December 1, 2025—officially released July 14, 2026 Procedural History Substitute information charging the defendant with the crime of murder, brought to the Superior Court in the judicial district of Fairfield and tried to the jury before E. Richards, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Reversed; new trial.

Kevin M. Black, Jr., assigned counsel, for the appel- lant (defendant).

Laurie N. Feldman, assistant state’s attorney, with whom, on the brief, was Joseph Corradino, state’s attor- ney, for the appellee (state).

Opinion ECKER, J. Under General Statutes § 54-84 (b), “[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 trial court in this case gave such an instruction to each of the venire panels during jury selection and to the empaneled jury in its preliminary instructions before the start of evidence, but omitted it from the final instructions given to the jury after the close of evidence and prior to delib- erations. The dispositive issue in this appeal is whether the omission from the final jury instructions was plain error. We hold that it was, and we reverse the judgment convicting the defendant, Luiz Roman, of murder in violation of General Statutes § 53-54a (a).

I

FACTS AND PROCEDURAL HISTORY

The record reflects the following facts relevant to this appeal. The defendant and the victim, Miguel Afzal, were acquaintances who both lived in Bridgeport. On November 20, 2019, the victim played video games at the defendant’s home and stayed there overnight. The next morning, the victim spoke with his father by telephone. He told his father that he was walking home and that the defendant would accompany him part of the way. The victim never returned home, however, and his family reported him missing later that day.

The police found the victim’s body on December 8, 2019, in the former Remington Arms factory (factory) in Bridgeport. He had been shot in the head. The police did not find the gun used to kill the victim or recover any trace evidence, such as hairs, fibers, bodily fluids, fingerprints, or footprints, from the crime scene.

The police interviewed the defendant three times in November and December 2019. During the interviews, the defendant described his movements on the day the victim went missing. The police showed the defendant images obtained from multiple surveillance cameras, which showed the defendant and the victim walking in the area of the factory on the day of the victim’s disappear- ance, and pointed out inconsistencies between the video evidence and the defendant’s statements. The defendant said that he had walked with the victim toward the vic- tim’s home; the video evidence, however, depicted the two men walking in the opposite direction. The defendant also told the police that he and the victim had parted ways at a particular intersection, but the video evidence showed them walking together past that intersection.

Although the defendant denied entering the factory, the video evidence depicted him walking with the victim toward the factory and later walking away from the fac- tory without the victim. The defendant told the police that, after separating from the victim, he spent the rest of the day cleaning an apartment in Bridgeport with an acquaintance.

The police also asked the defendant about his clothing and appearance on the day the victim went missing. The surveillance footage depicted the defendant carrying his jacket at some point after leaving the victim, but the defendant could be seen later walking without the jacket. When questioned, the defendant was unable to tell the police what he had done with his jacket in the interim. The defendant’s disposal of his jacket that morning became part of the state’s theory of guilt at trial.

In addition, the defendant made statements to his own family and to the victim’s family about the victim’s disappearance. The defendant told his mother that the victim “took something that didn’t belong to him, and he owed it to the streets. It happened because it had to hap- pen. . . . [H]e did things in the street, and they made him pay.” Four days after the victim went missing, the defen- dant visited the victim’s father and asked him for $900, telling him that it was payment for drugs with which the victim had allegedly run away. When questioned about this during his police interviews, however, the defendant denied asking the victim’s father for money.

In December 2019, the defendant moved to Ohio to live with his then cousin-in-law, Jose Cruz Correa (Cruz). In January 2020, the defendant told Cruz that he had been with the victim and a third person when a “problem” arose. The defendant told Cruz that they had taken the victim to a factory, made him kneel, and then shot him in the head. The police had not publicized that the cause of the victim’s death was a gunshot wound to the head. Cruz told the police about the defendant’s confession in January 2021, and the police arrested the defendant and charged him with the victim’s murder.

The defendant’s trial took place from November 8 to 17, 2023. The state’s case against him relied heavily on his previous statements. Cruz testified about the defen- dant’s confession, the victim’s father testified about the defendant’s demand for payment, and a detective testi- fied that, about one week after the victim went missing, the detective visited the apartment that the defendant and his acquaintance were purportedly cleaning on the day the victim disappeared, and the apartment was cov- ered with animal feces and urine. Another detective testi- fied about the defendant’s statement to his mother that the victim “owed it to the streets.”1 The state also played video recordings of all three of the defendant’s police interviews for the jury. One of the interviewing detec- tives testified about the video evidence of the defendant’s movements on the day of the victim’s disappearance, and the prosecutor in closing pointed out the inconsistencies between that evidence and the defendant’s interview statements. The detective also testified about the video evidence showing the defendant with and without his jacket on the day the victim went missing and the defen- dant’s inability to explain what he had done with his jacket. During closing arguments, the prosecutor argued that the defendant had disposed of his jacket to change his appearance and that this constituted evidence of the defendant’s consciousness of guilt.

The defendant did not testify at trial. The evidentiary portion of the trial ended on November 15, 2023. Counsel presented their respective closing arguments, and the court read its final instructions to the jury the next day, November 16, 2023. A hard copy of the final instruc- tions was provided to the jury for reference, as needed. Jury deliberations began that day and continued into the following day, when the jury returned its verdict, finding the defendant guilty of murder.

The specific facts regarding the no adverse inference instruction are as follows. Because the defendant did not testify and his lawyer did not request otherwise, the trial court was required to instruct the jurors, pursuant to § 54-84 (b), “that they may draw no unfavorable infer- ences from the [defendant’s] failure to testify.” That instruction was not included in the court’s final instruc- tions. However, during jury selection in September and October 2023, the trial court advised each venire panel that, “[i]f . . . the defendant decides not to testify, you must draw no unfavorable inference from his decision not to testify.” The instruction, in sum and substance, was also given to the jury before the start of evidence on November 8, 2023, when the trial court provided the jury with preliminary instructions covering topics such as the order of events during trial, the jury’s role as fact finder, and the jury’s obligation not to conduct outside research related to the case. As part of these preliminary instructions, the judge informed the jury that, “[t]he defendant . . . has a constitutional right not to testify. You must draw no unfavorable inference from his decision not to testify if he so chooses not to testify.” As noted, the instruction required by § 54-84 (b) was omitted from the final jury instructions given to the jury eight days later, after the close of evidence and closing arguments, and immediately prior to the jury’s deliberations. The court had circulated written drafts of the final jury instructions to counsel before and during trial. The drafts did not contain the required instruction, but neither defense counsel nor the prosecutor pointed out the omission or requested that the instruction be included.2 Defense counsel also took no exception to the final jury instructions after they were read to the jury. The jury found the defendant guilty of murder, and the trial court rendered judgment accordingly. This direct appeal followed. See General Statutes § 51-199 (b) (3). Additional relevant facts will be provided as necessary.3 II

DISCUSSION

The defendant claims that the trial court commit- ted plain error by omitting the no adverse inference instruction required by § 54-84 (b) from the final jury instructions after the close of evidence.4 Our plain error analysis proceeds in two steps. First, the error must be “patent [or] readily [discernible]”; (internal quotation marks omitted) State v. Jamison, 320 Conn. 589, 596, 134 A.3d 560 (2016); and, second, “the failure to grant relief [must] result in manifest injustice.” (Internal quotation marks omitted.) Id., 597; see, e.g., State v. Diaz, 348 Conn. 750, 762–63, 311 A.3d 714 (2024); see also Practice Book § 60-5.

With respect to the first prong of the plain error test,5 we have explained that the error must be “pat- modifications to the final jury instructions. The court also circulated a revised draft of the final instructions to counsel on November 2, 2023. The court and counsel went “over the [final instructions] throughout the evidentiary portion of the trial” and engaged in a final charge confer- ence prior to closing arguments. The no adverse inference instruction was not mentioned in these discussions. ent [or] readily [discernible] on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable.” (Internal quotation marks omitted.) State v. Jamison, supra, 320 Conn. 596. The paradigmatic instance of patent error occurs when “the trial court and the parties have overlooked clearly controlling law, be it a constitution, statute, rule, case law, or estab- lished practice.” (Internal quotation marks omitted.) E. Prescott & J. Lavoie, Connecticut Appellate Practice & Procedure (8th Ed. 2023) § 8-2:4, p. 504; see, e.g., Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 59–60, 594 A.2d 981 (1991) (“[w]e have noticed plain error in the failure of a trial court to apply a clearly relevant statute to the case before it” because “our failure to rectify such an evident oversight may undermine public confidence in the judicial proceedings” (internal quotation marks omitted)). Controlling law is the law in existence at the time of trial. See, e.g., State v. Turner, 334 Conn. 660, 683, 224 A.3d 129 (2020) (“[t]his court has explained that whether an error is clear is premised on the law existing at the time of trial”); see also State v. Bellamy, 323 Conn. 400, 458 n.6, 147 A.3d 655 (2016) (Rogers, C. J., concurring) (“the trial court’s proper application of the law existing at the time of trial cannot constitute reversible error under the plain error doctrine” (internal quotation marks omitted)); State v. Darryl W., 303 Conn. 353, 374, 33 A.3d 239 (2012) (same).

Once a court determines that the error is patent, the manifest injustice prong of the analysis asks whether appellate review applied to unpreserved claims under Practice Book § 60-5, while, other times, it is used to refer only to the first prong of that analysis (i.e., whether an error is plain, patent, or readily discern- ible). Compare, e.g., State v. Ruocco, 322 Conn. 796, 803, 144 A.3d 354 (2016) (using “ ‘plain error’ ” to refer to doctrine as whole), with State v. Yurch, 229 Conn. 516, 521, 641 A.2d 1387 (using “plain error” to refer to only patent error prong), cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343 (1994). To avoid confusion, unless the context indicates otherwise, we will refer to the first prong of plain error review as “patent error.” “the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial pro- ceedings.” (Internal quotation marks omitted.) State v. Jamison, supra, 320 Conn. 596. “[A]n important factor in determining whether to invoke the plain error doctrine is whether the claimed error result[ed] in an unreliable verdict or a miscarriage of justice.” (Internal quotation marks omitted.) State v. Pierce, 269 Conn. 442, 450, 849 A.2d 375 (2004). This is not the first time that this court has been asked to conduct plain error review of an unpreserved claim regarding a trial court’s failure to give the no adverse inference instruction required by § 54-84 (b). See, e.g., State v. Ruocco, 322 Conn. 796, 803–804, 144 A.3d 354 (2016) (citing cases). As we explained in Ruocco, “[t]his court has had a number of opportunities to review the failure of a trial court to incorporate the requirements of § 54-84 (b) into its instructions to the jury. In none of these cases had the [defense] taken an exception at trial. In each of them we chose to review the claim on its mer- its. . . . [W]e [have] explained that noncompliance with § 54-84 (b) is [patent] error because the statute serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial.” (Cita- tions omitted; internal quotation marks omitted.) Id., 803–804; see also State v. Burke, 182 Conn. 330, 331–32, 438 A.2d 93 (1980) (when “the legislature has chosen specific means to effectuate a fundamental right [as in § 54-84 (b)], failure to follow the mandatory provisions of the statute is plain error, reviewable by this court”). A

Patent Error

The obvious and readily discernible error in the pres- ent case is evident from controlling Appellate Court case law, existing at the time of trial, construing § 54-84 (b) to require the trial court to give the no adverse inference instruction in its final jury instructions. This was the Appellate Court’s unequivocal holding in State v. Hicks, 97 Conn. App. 266, 277, 903 A.2d 685, cert. denied, 280 Conn. 930, 909 A.2d 958 (2006). Although the state does not cite Hicks in its brief, much less explicitly ask us to overrule that decision,6 accepting the state’s argument would necessarily require us to conclude that Hicks was wrongly decided because Hicks held that the statutory mandate in § 54-84 (b) is not satisfied under circum- stances nearly identical to the present case. See id. As in this case, the trial court in Hicks gave a pre- liminary no adverse inference instruction to the jury before the start of evidence. See id., 274. In the final jury instructions, the court mentioned that the defendant had not testified and instructed the jury that it should not draw any unfavorable inferences; see id., 268; but the court failed to specify that the jury should not draw unfavorable inferences from the defendant’s choice not to testify, as required by § 54-84 (b). See id., 273. The Appel- late Court explained the instructional defect as follows: “Although it immediately follows mention of the fact that the defendant did not testify, the court’s instruction that the jury ‘not draw any unfavorable inference’ appears to be an instruction of general applicability, one that is per- haps related to the several instructions that immediately preceded it. . . . The statute requires the court to convey a specific instruction to the jury that no unfavorable infer- ence is to be drawn from the fact that the defendant did not testify. The court’s instruction failed to specify from what fact the jury was to draw no unfavorable inference. This renders the instruction inadequate.” Id., 272–73.

Hicks expressly rejected the contention, also made by the state in this case, that the statutory requirement was satisfied, notwithstanding the omission of the prescribed instruction from the final jury instructions, because the trial court gave the no adverse inference instruction as part of its preliminary instructions prior to the start of evidence. See id., 275–77. Relying on two earlier Appel- late Court decisions construing § 54-84 (b), the court explained that the trial court’s preliminary instruction failed to satisfy the statute’s mandate. See id., citing State v. Stewart, 60 Conn. App. 301, 308–10, 759 A.2d 142, cert. granted and remanded for reconsideration, 255 Conn. 913, 763 A.2d 1039 (2000) (appeal withdrawn October 1, 2001), and State v. Vega, 36 Conn. App. 41, 46, 48, 646 A.2d 957 (1994). The Appellate Court approv- ingly recited a variety of reasons that had been identified in Stewart and Vega as grounds to reject the claim that a trial court could discharge its statutory duty under § 54-84 (b) by including the no adverse inference instruc- tion only in its preliminary instructions. See State v. Hicks, supra, 97 Conn. App. 275–77. Those reasons included the passage of time between the preliminary instructions and the final instructions, the statutory mandate that the instruction be given “in the context of the trial,” not during pretrial proceedings, and the fact that, prior to the trial’s conclusion, “the court does not know whether the defendant will testify.” (Emphasis in original; internal quotation marks omitted.) Id., 276. The court in Hicks concluded that “the rationale set forth in Vega and Stewart defeats [the state’s] argument [that the preliminary instruction satisfied the statutory requirement or rendered the noncompliance harmless]. [In Hicks], the [trial] court provided preliminary instruc- tions to the jury [at the start of trial] several days prior to the time it delivered its [final] jury charge. At the time that it delivered its preliminary instructions, the court obviously was unable to state with certainty whether the defendant would exercise his right not to testify during should be addressed and decided in this case because we are undertaking review for plain error. the evidentiary phase of the trial. . . . The instruction set forth in [§ 54-84] (b) provides that the court shall instruct the jurors ‘that they may draw no unfavorable inferences from the accused’s failure to testify.’ . . . This language reflects that the instruction is mandatory in cases in which the defendant does not take the witness stand and that the instruction should address this actu- ality. Stated otherwise, an instruction that addresses the possibility that a defendant may elect not to testify, such as the one that the court provided to the jury prior to the presentation of evidence, is not the instruction set forth in the statute.” (Citation omitted; emphasis in original.) Id., 277. Hicks clearly and unequivocally holds that the statutory no adverse inference instruction must be included in the final jury instructions and that earlier instructions to the jurors are an inadequate substitute. That holding has not been overruled or undermined since Hicks was decided in 2006.7

To find patent error in the present case, it is perhaps enough to say that the trial court instructed the jury in a manner that contravened the express holding of an Appellate Court decision involving indistinguishable circumstances. See, e.g., Mendillo v. Tinley, Renehan & Dost, LLP, 329 Conn. 515, 528 n.10, 187 A.3d 1154 (2018) (“[T]he concept of binding precedent prohibits a trial court from overturning a prior decision of an appel- late court. This prohibition is necessary to accomplish the purpose of a hierarchical judicial system. A trial court is required to follow the prior decisions of an appellate court to the extent that they are applicable to facts and issues in the case before it, and the trial court may not overturn or disregard binding precedent.” (Internal quotation marks omitted.)). To the extent that the state argues that our plain error review should be limited to the statutory text of § 54-84 (b) alone, without consideration of the construction of that text as set forth in Hicks, this argument misapprehends the nature and scope of plain error review. For present purposes, the statutory text is imbued with the interpretive gloss provided by authoritative case law, which includes Hicks. See Hum- mel v. Marten Transport, Ltd., 282 Conn. 477, 497–501, 923 A.2d 657 (2007) (for purposes of General Statutes § 1-2z, text of statute includes prior judicial construction of its statutory language); see also Airey v. Feliciano, 352 Conn. 639, 646, 338 A.3d 344 (2025).

Hicks’ construction of § 54-84 (b) established the statute’s requirement that the no adverse inference instruction be given in the final jury instructions, and it is evident that the trial court in the present case over- looked Hicks as controlling precedent. Nonetheless, we are aware that this court has not previously had occasion to consider whether the holding in Hicks is correct. In this unusual circumstance, we are persuaded that our review for plain error in this case should address that question. The issue has been briefed by the parties in substance, although without express reference to Hicks itself. See footnote 6 of this opinion and accompanying text. Having considered the matter fully, we conclude that Hicks correctly determined that the statutory man- date of § 54-84 (b) requires the trial court to give the no adverse inference instruction in its final instructions, immediately prior to the jury’s deliberation. The rea- soning in Hicks, summarized previously, is sound, and we find compelling, additional support for that holding upon further examination.

Section 54-84 (b) provides in relevant part 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 statute does not state explicitly when the instruction must be given, but the intention of the legislature in this regard emerges with clarity upon consideration of what it meant to “instruct the jury” when the law was enacted. See, e.g., Kuchta v. Arisian, 329 Conn. 530, 537, 187 A.3d 408 (2018) (determining meaning of “advertising signs” based on definitions that were “contemporaneous with the time when the grant of authority to regulate ‘advertising signs and billboards’ was added to the . . . statute”); State v. Wright, 320 Conn. 781, 801–802, 135 A.3d 1 (2016) (determining meaning of word “mate- rial” as used in statute based on its meaning “[a]round the time” of statutory enactment); see also Maturo v. State Employees Retirement Commission, 326 Conn. 160, 176, 162 A.3d 706 (2017) (“[w]hen a term is not defined in a statute, we begin with the assumption that the legislature intended the word to carry its ordinary meaning, as evidenced in dictionaries in print at the time the statute was enacted”).

Section 54-84 (b) was enacted in 1977. See Public Acts 1977, No. 77-360. The historical record indicates that preliminary instructions—in the sense of instruc- tions given to the jury immediately before the presen- tation of evidence—were not used in Connecticut at that time and did not make an appearance until years later. Our research has not uncovered a single reported decision mentioning their use until State v. Woolcock, 201 Conn. 605, 518 A.2d 1377 (1986).8 Indeed, pre- liminary instructions were apparently such a novelty in Connecticut in 1986—nine years after passage of § 54-84 (b)—that this court was called on in Woolcock to determine whether the trial court’s use of “this innova- tive procedure” violated the defendant’s due process rights.9 (Footnote omitted.) Id., 621; see id., 618–21. Woolcock noted that the pertinent rule of practice at the time of the trial in 1983 provided in relevant part that “ ‘[t]he judicial authority shall deliver the instructions to the jury after the closing arguments.’” Id., 621 n.8; see id., 611.10 Also noteworthy is the fact that a treatise containing model jury instructions likewise contains no mention whatsoever of preliminary instructions in the editions published both before and four years after § 54-84 (b) was enacted. See generally 1 D. Wright & J. Daly, Connecticut Jury Instructions (3d Ed. 1981); 1 D. Wright, Connecticut Jury Instructions (2d Ed. 1970).

This historical review provides compelling evidence that the legislature intended that the prescribed instruction would be included in the final instructions because that is what the law meant by the words “instruct the jury” at the time of the statutory enactment. See, e.g., State v. Fernando A., 294 Conn. 1, 19, 981 A.2d 427 (2009) (“the legislature is presumed . . . to know the state of existing relevant law when it enacts a statute” (internal quotation marks omitted)).

Beyond this evidence derived from contemporary usage, there is yet an additional reason to believe that the legislature intended the no adverse inference instruction to be included in the final charge to the jury: the instruc- tion conveys to the jury a precept of foundational impor- tance to our criminal justice system. See, e.g., State v. Sinclair, 197 Conn. 574, 582–83, 500 A.2d 539 (1985) (“[Section 54-84 (b)] serves to effectuate the fundamental constitutional right of a defendant not to testify in his criminal trial. That right has its origin in the privilege against self-incrimination under both the federal and the state constitutions. . . . A trial court’s failure to limit juror speculation on the meaning of a defendant’s silence exacts an impermissible toll on the full and free exercise of the privilege [against self-incrimination]. . . . That rationale is fully appropriate to the application of the mandate of § 54-84 (b) . . . .” (Citations omitted; footnote omitted; internal quotation marks omitted.)). Our case law makes it clear that, even after the advent of preliminary instructions in the 1980s, any jury instruc- tion of importance to the jury’s deliberative process must be included in the final instructions. Our decision in Woolcock again proves instructive. At the same time that Woolcock approved the use of preliminary instructions, it also emphasized that preliminary instructions serve a different purpose than final instructions and should not be considered as a substitute for them. “ ‘It is well and good for [t]rial [j]udges to give jurors the benefit of an introductory and explanatory address to help dissipate some of the mystery that may lurk in laypersons who are about to undertake the responsibilities of playing a significant and determinative, albeit transient, role in the adjudicative process. . . . The desirability of orienta- tion, however, does not excuse the requirement for the eventual predeliberation [i.e., final] instructions [that] would ordinarily be included in a charge in a particular case. To believe that the first is a substitute for the sec- ond, or to act as if it does not matter when but only that a charge is given, is to misapprehend the function of the latter.’ ” (Emphasis in original.) State v. Woolcock, supra, 201 Conn. 624, quoting People v. Newman, 46 N.Y.2d 126, 129–30, 385 N.E.2d 598, 412 N.Y.S.2d 860 (1978);11 see also State v. Lewis, 220 Conn. 602, 614, 600 A.2d 1330 (1991) (“[w]hen preliminary instructions are given, they do not supersede those given after evidence and arguments under our practice” (internal quotation marks omitted)).

We are left with no doubt that Hicks was correctly decided. The legislative mandate contained in § 54-84 (b), requiring trial courts to “instruct the jury” that it may draw no adverse inference from the defendant’s choice not to testify unless the defendant requests oth- erwise, must be included in the final jury instructions. At the time of enactment, a legislature familiar with the relevant legal regime could have intended no other meaning.12 To be clear, our conclusion in no way implies that the statutory instruction must be given only in the final instructions. The dissent is correct that jurors may wonder during trial whether they will hear from the defendant, and this is a good reason for the court to include the no adverse instruction in its preliminary instructions, as the trial court did in this case. There remains no justification, however, for omitting the instruction from the final charge, which is given “at [a] critical time, after all the evidence and after the argu- to be a commendable practice so long as the jury is again fully instructed at the close of the proceedings.” (Citations omitted; internal quotation marks omitted.) State v. Woolcock, supra, 201 Conn. 623. ments of counsel.” (Internal quotation marks omitted.) State v. Lewis, supra, 220 Conn. 614; accord State v. Woolcock, supra, 201 Conn. 627.

We can quickly dispense with the dissent’s assertion that Hicks was wrongly decided because it erroneously applied the Golding13 framework to a nonconstitutional claim. See part II of the dissenting opinion. The observa- tion is beside the point, even if it were correct.14 In Hicks, the Appellate Court determined, as a matter of statu- tory construction, that the jury instruction mandated by § 54-84 (b) must be included in the final instructions given to the jury after the close of evidence. See State v. Hicks, supra, 97 Conn. App. 275–77. The fact that the Appellate Court reached the unpreserved issue via Golding rather than plain error review is irrelevant to the correctness of its analysis of the statutory issue on the merits; the statutory analysis is the same either way, and the construction is either correct or erroneous. We hold today that Hicks properly construed the statute. Finally, the state argues that it was not plain error to omit the instruction required by § 54-84 (b) from the final instructions because defense counsel implicitly waived his objection to the final jury instructions by failing to raise it at trial. We reject this claim because it is well established that plain error review is avail- able for unpreserved claims of instructional error. See, e.g., State v. McClain, 324 Conn. 802, 815, 155 A.3d 13

State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).

209 (2017) (implied waiver of instructional claim under State v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011), “does not foreclose claims of plain error”); see also footnote 4 of this opinion.

To summarize, the Appellate Court’s definitive con- struction of § 54-84 (b) in Hicks, in terms fully applicable to the facts of this case, required the trial court to include the no adverse inference instruction in its final jury instructions. Because the trial court failed to do so, we conclude that the omission of the no adverse inference instruction from the final jury instructions was a patent and readily discernible error.

B

Manifest Injustice

The second stage of the plain error analysis asks whether the trial court’s patent error resulted in mani- fest injustice. See State v. Jamison, supra, 320 Conn. 596–97. The defendant, relying largely on the Appellate Court’s conclusion in State v. Suplicki, 33 Conn. App. 126, 130, 634 A.2d 1179 (1993), cert. denied, 229 Conn. 920, 642 A.2d 1216 (1994), argues that the trial court’s failure to comply with § 54-84 (b) requires automatic reversal. Alternatively, the defendant contends that he is entitled to a new trial because the state has failed to demonstrate that the omission of the statutorily man- dated instruction was harmless beyond a reasonable doubt. The state argues that automatic reversal is inap- plicable and that any error was harmless. We agree with the defendant’s alternative argument that reversal is required because the state failed to prove harmlessness beyond a reasonable doubt.

The Patent Error Does Not Require Automatic Reversal

Before reaching our manifest injustice analysis, we address the defendant’s claim that automatic reversal is required to remedy the trial court’s failure to give the no adverse inference instruction required by § 54-84 (b). The defendant’s argument for a rule of automatic reversal is based primarily on Suplicki, in which the Appellate Court held that “the total omission of the ‘no adverse inference’ instruction is plain error that is not subject to a harmless error analysis.” Id. Suplicki cited this court’s decisions in State v. Burke, supra, 182 Conn. 330, and State v. Carter, 182 Conn. 580, 438 A.2d 778 (1980), in support of the proposition “that the complete omission of a ‘no adverse inference’ instruction was reversible error without consideration of a harmless error analysis.” State v. Suplicki, supra, 33 Conn. App. 130.

Suplicki accurately characterized Burke and Carter in that this court in both decisions, after determining that the trial court had completely omitted the instruction prescribed by § 54-84 (b), ordered a new trial without conducting a harmless error analysis. See State v. Carter, supra, 182 Conn. 580–81; State v. Burke, supra, 182 Conn. 330–34. Notwithstanding those two earlier cases, however, subsequent decisions from this court have left undecided the issue of whether automatic reversal is the appropriate remedy for such statutory noncompliance.

See State v. Ruocco, supra, 322 Conn. 805; State v. Sinclair, supra, 197 Conn. 584–86. Both Sinclair and Ruocco found it unnecessary to reach the issue because, in each case, the court determined that the error was harmful. See State v. Ruocco, supra, 805 (“[w]e . . . need not decide that question today because . . . the state can- not establish that the violation in the present case was harmless beyond a reasonable doubt”); State v. Sinclair, supra, 586 (similar). As in Sinclair and Ruocco, it is not strictly necessary in the present case to decide whether to adopt, reject, or modify the rule of automatic reversal set forth in Suplicki because we conclude that reversal is required under a harmless error analysis. See part II B 2 of this opinion. We nonetheless exercise our discretion to address this issue, which has been fully briefed in this appeal, because it has remained open since it was raised more than forty years ago in Sinclair, its resolution has twice been deferred by this court, and it has on multiple occasions come before the Appellate Court, which is bound to follow Suplicki, unless and until we hold otherwise. Moreover, the state specifically argues that Suplicki’s reasoning is “unsound” and that we should apply a harmless error analysis instead of Suplicki’s rule of automatic reversal.

We overrule State v. Suplicki, supra, 33 Conn. App. 126, to the extent that it requires automatic reversal of a judgment of conviction when the trial court’s jury instructions fail to comply with § 54-84 (b). We conclude that Suplicki’s rule of automatic reversal is unnecessary to protect the interests safeguarded by § 54-84 (b) and that a violation of the statute is not the kind of error that evades review for harmlessness.

Automatic reversal generally is required only in cases presenting a structural error. An error is considered structural “when it affects the framework within which the trial proceeds . . . such that the error always results in fundamental unfairness,” or “when the effects of the error are simply too hard to measure . . . .” (Internal quotation marks omitted.) State v. Joseph A., 336 Conn. 247, 265, 245 A.3d 785 (2020). “[S]tructural errors tend to by their very nature cast so much doubt on the fair- ness of the trial process that, as a matter of law, they can never be considered harmless. . . . Constitutional violations have been found to be structural . . . only in a very limited class of cases.” (Internal quotation marks omitted.) Id., 264–65. “For instance, the failure to give a reasonable doubt instruction to jurors that comports with constitutional requirements renders the outcome of their deliberations entirely unreliable.” State v. Cushard, 328 Conn. 558, 570–71, 181 A.3d 74 (2018). In the same vein, “denial of counsel for the entirety of the defendant’s trial is considered structural error” because it “pervade[s] the entire proceeding . . . .” (Internal quotation marks omitted.) Id., 572; see also United States v. Davila, 569 U.S. 597, 611, 133 S. Ct. 2139, 186 L. Ed. 2d 139 (2013) (observing that narrow category of structural errors includes, for example, “denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt”). “In contrast, an error is usually subject to harmless error review when it does not pervade or undermine the fairness of the trial. . . . [T]he reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury.” (Citations omitted; internal quotation marks omitted.) State v. Cushard, supra, 571.

The defendant points out that many of our leading plain error cases involving the omission of the instruc- tion required by § 54-84 (b) emphasize the vital purpose that the instruction serves. See, e.g., State v. Ruocco, supra, 322 Conn. 804; State v. Sinclair, supra, 197 Conn. 582–83. Indeed, the statutory mandate to give the no adverse inference instruction is more protective than the federal constitutional standard, which requires the instruction only when requested by the defendant. See Carter v. Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed. 2d 241 (1981). The defendant also emphasizes that we have long recognized the no adverse inference instruction to be of constitutional dimension because it is a legislative mandate protecting a defendant’s fun- damental constitutional right not to testify. See, e.g., State v. Ruocco, supra, 804; State v. Yurch, 229 Conn. 516, 521–22, 641 A.2d 1387, cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343 (1994); State v. Sinclair, supra, 582, 584.

The fact that the instruction reflects a legislative imperative intended to safeguard a constitutional right, however, does not inescapably mean that the failure to give the instruction amounts to structural error. For example, “the omission of a single element of a crime from the jury charge is not a structural constitutional error that is exempt from harmless error analysis.” Banks v. Commissioner of Correction, 339 Conn. 1, 30, 259 A.3d 1082 (2021); see Greer v. United States, 593 U.S. 503, 513, 141 S. Ct. 2090, 210 L. Ed. 2d 121 (2021) (“discrete defects in the criminal process . . . such as the omission of a single element from jury instructions . . . are not structural because they do not ‘necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence’ ” (emphasis in original)), quoting Neder v. United States, 527 U.S. 1, 9, 119 S. Ct. 1827, 144 L. Ed. 2d 35 (1999). Indeed, we have previously held that the failure to give a no adverse inference instruction that was requested by the defendant, in violation of Carter v. Kentucky, supra, 450 U.S. 305, is subject to harmless error analysis and is not structural error. See State v. Dudla, 190 Conn. 1, 3–7, 458 A.2d 682 (1983).15 Similarly, “all federal courts, and the vast majority of state courts . . . hold that a trial court’s failure to give a no adverse inference instruction when requested by a defendant . . . is not structural error, but rather, is amenable to harmless error review.” State v. Ruocco, supra, 322 Conn. 815–16 (Espinosa, J., dissenting); see id., 816 (Espinosa, J., dissenting) (citing cases). We conclude that the failure to give the jury instruction required by § 54-84 (b) is not an error that falls within the narrow category of circumstances subject to automatic reversal.

Our rejection of the automatic reversal rule in no way diminishes the critical nature of the right at stake or the great weight that we assign to the legislative mandate embodied in § 54-84 (b). As we will explain shortly, statu- tory noncompliance will require reversal unless the state can meet the heavy burden of demonstrating that the error was harmless beyond a reasonable doubt.

The Error Was Not Harmless Beyond a Reasonable Doubt

Having determined that the patent error in the present case is not subject to automatic reversal, we next address the standard by which to assess manifest injustice under the plain error doctrine in this context. Plain error claims have arisen frequently since the legislature enacted the current version of § 54-84 (b) in 1977.16 On appeal, we have found patent error in many of these cases, and, virtually without exception, we have conducted the sec- ond stage of the plain error analysis under the rubric of harmless error rather than using the manifest injustice framework ordinarily applied to plain error review.17 We explained this doctrinal idiosyncrasy in Ruocco: “[O]rdi- narily, under the second prong of the plain error test, it is the appellant’s burden to demonstrate ‘that a failure to reverse the judgment would result in manifest injus- tice.’ . . . We previously have determined, however, that, because the statutorily mandated no adverse inference instruction was intended to effectuate a fundamental constitutional right, unless the defendant or defense counsel requests that the charge not be given, when the trial court fails to give that instruction, the burden is on the state to demonstrate that the omission was harmless beyond a reasonable doubt. See, e.g., State v. Yurch, [supra, 229 Conn. 523] . . . .” (Citation omitted.)

State v. Ruocco, supra, 322 Conn. 804–805 n.3;18 see also footnote 17 of this opinion.

The harmless error standard applied by this court in Ruocco and its forebears requires the state to establish, beyond a reasonable doubt, that there is no reasonable possibility that the jury was misled as a result of the instructional error. See State v. Ruocco, supra, 322 Conn. 804; State v. Sinclair, supra, 197 Conn. 584; State v. Tatem, 194 Conn. 594, 599, 483 A.2d 1087 (1984); see also State v. Cook, 287 Conn. 237, 252, 947 A.2d 307 (“[t]he test for determining whether a constitutional error is harmless . . . is whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained” (internal quotation marks omitted)), cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L. Ed. 2d 328 (2008). Because we agree with Hicks’ construction of § 54-84 (b), the fact that the trial court gave a preliminary no adverse inference instruction to the jury does not alter the harmless error standard required by our precedent. As a result, this is a total omission case.19 No version of the no adverse inference instruction was given in the court’s final charge.

Our case law applying the harmless error standard in connection with noncompliance with § 54-84 (b) focuses primarily on two considerations. The first of these requires us to examine the jury instructions themselves and ask whether, “from the viewpoint of the charge as a whole, there is no reasonable possibility that the jury was misled” regarding the prohibition on drawing an adverse inference from the defendant’s choice not to testify. State v. Sinclair, supra, 197 Conn. 584; see, e.g., State v. Ruocco, supra, 322 Conn. 805–808 (omission of required instruction was not harmless, despite trial court’s instructing jury on presumption of innocence and telling venire panel during jury selection that it should not “ ‘hold [it] against [the defendant]’” if he did not testify); State v. Yurch, supra, 229 Conn. 524 (finding harmless error, even though “the trial court improperly instructed the jury that it could not draw unreasonable inferences from the fact that the defen- dant did not testify,” because court immediately gave instruction “completely prohibiting the use of that fact”); State v. Marra, 195 Conn. 421, 443, 489 A.2d 350 (1985) (although final charge “was not in strict compliance with . . . § 54-84 (b) in that the word ‘unfavorable’ was not used, the substantive meaning of the statutory require- ment was conveyed [by the balance of the charge]”); State v. Tatem, supra, 194 Conn. 600 (because “[w]e cannot assume that lay jurors know what lawyers and judges know,” fact that jury was instructed regarding state’s burden of proof and defendant’s right to remain silent did not cure defects in § 54-84 (b) instruction (internal quotation marks omitted)).

The second consideration is whether the evidence of guilt is overwhelmingly strong, such that there is no involving partial omissions, we have applied the same harmless error standard used in total omission cases. See id., 625–26; State v. Cobb, 199 Conn. 322, 324–25, 507 A.2d 457 (1986), overruled on other grounds by State v. Michael T., 338 Conn. 705, 259 A.3d 617 (2021); State v. Carrione, 188 Conn. 681, 684–86, 453 A.2d 1137 (1982), cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed. 2d 347 (1983). The state, unlike the dissent, does not argue that a different legal standard applies or that the defendant shoulders the burden of meeting that standard. reasonable possibility that the instructional error con- tributed to the jury’s verdict. See, e.g., State v. Ruocco, supra, 322 Conn. 805–806 (evidence was “sufficient” but not “ironclad”); State v. Sinclair, supra, 197 Conn. 586 (evidence was “sufficient” but “not overwhelming”). As part of this inquiry, the court will examine whether the evidence of guilt would have called for an explanation from the defendant such that his silence might give rise to an unfavorable inference. See State v. Ruocco, supra, 806 (“given the discrepancies in [the victim’s] testimony and the fact that there was only one eyewit- ness . . . we cannot discount the possibility that the jury might have doubted [the witnesses’] testimony but found the defendant guilty because of his failure to testify”); State v. Sinclair, supra, 586 (“[o]n this essential element of the crime of burglary in the second degree [requiring that the defendant intend to commit a crime in a dwell- ing], the jury might well have buttressed the state’s circumstantial evidence with an unfavorable inference improperly drawn from the defendant’s failure to explain his conduct”); State v. Dudla, supra, 190 Conn. 7 (“The jury might have doubted the uncorroborated testimony offered of the defendant’s guilt, but [have found] him [guilty] because he did not take the stand to deny his guilt. Because the jury might have considered the failure of the defendant to testify in determining the likelihood that the officer’s testimony was true, we cannot find the trial court’s failure to give a ‘no inference’ charge to be harmless error.”); State v. Thurman, 10 Conn. App. 302, 314–15, 523 A.2d 891 (“[a]lthough the defendant did not testify at trial, his account of the events . . . was presented through the testimony of . . . witnesses,” and, “[b]ecause [the jury was] unable to observe the defendant on the witness stand, [it] might have buttressed the state’s evidence with an unfavorable inference improp- erly drawn from the defendant’s silence at trial”), cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987).

Turning to the first consideration—the overall effect of the instructions that were provided to the jury in this case—the state argues that omission of the no adverse inference instruction from the final instructions was harmless because of the cumulative effect of (1) the no adverse inference instructions given before the start of evidence and during jury selection, and (2) other compo- nents of the court’s final jury instructions that provided related information. In support of this claim, the state points to the following particulars. During jury selection, which began two months before trial, the trial court told prospective jurors that, “[i]f . . . the defendant decides not to testify, you must draw no unfavorable inference from his decision not to testify.” After the jury was selected and sworn in, but before the start of evidence, the trial court gave a preliminary instruction, which included telling the jury that it “must draw no unfavorable infer- ence from [the defendant’s] decision not to testify if he so chooses not to testify.” This preliminary charge was given eight days before the court delivered its final jury instructions. The state also relies on guidance included in the court’s final instructions, most prominently the instructions that “the defendant is presumed to be inno- cent, unless and until proven guilty beyond a reasonable doubt,” and that the jury’s verdict must be “based on the facts drawn only from the evidence introduced . . . in the courtroom . . . .”20

We reject the state’s claim that, in the aggregate, the instructions to the jury rendered noncompliance with § 54-84 (b) harmless. With respect to the content of the final jury instructions, we have previously rejected the contention that noncompliance with § 54-84 (b) is made harmless by instructions regarding the presumption of innocence and the state’s burden of proof. See State v. Ruocco, supra, 322 Conn. 807 (“[w]hen . . . the [final] jury charge contains no language that resembles the instruc- tion mandated by § 54-84 (b), we cannot assume that the jurors had sufficient knowledge of the law to be able to glean from the balance of the instructions that they should draw no adverse inference from the defendant’s failure to testify”); see also State v. Tatem, supra, 194 Conn. 600 (“[w]e cannot accept the state’s claim . . . that ‘a reasonable juror hearing [the erroneous no adverse inference] instruction within the context of the entire charge would naturally assume that the defendant’s silence formed no part of the case’ ” (citation omitted)); State v. Thurman, supra, 10 Conn. App. 311–12 (“[T]he charge provided the jury with an explanation of the bur- den and standard of proof, the presumption of innocence, and the fact that the defendant had a constitutional right not to testify. It was not sufficient, under the provisions of § 54-84 (b), for the trial court to inform the jury of these principles.” (Footnote omitted.)). The final instructions cited by the state do not address the particular risk that the no adverse inference instruc- tion is designed to confront, namely, the harm flowing from “juror speculation on the meaning of a defendant’s silence” and the danger that the jury might improperly give evidentiary weight to the defendant’s silence. State v. Sinclair, supra, 197 Conn. 583. The statutory mandate that the court give a no adverse inference instruction is not discharged by instructions regarding the presump- tion of innocence, the state’s burden of proof, or the generic prohibition against guesswork.

If anything, our concern in the present case is height- ened rather than diminished by the content of the final instructions, particularly the final instruction inform- ing the jury that a reasonable doubt is one that “has its foundation in the evidence or lack of evidence.” In the absence of the required no adverse inference instruc- tion, this instruction could have left the jury with the impression that it could consider the defendant’s failure to testify in its deliberations.

We also are unpersuaded by the state’s argument that the inclusion of a no adverse inference instruction in the preliminary instructions given prior to the start of evidence and in the instructions given to the venire panels during jury selection renders the omission of that instruction from the final instructions harmless beyond a reasonable doubt.21 On the present factual record, we conclude for the following three reasons that the earlier instructions do not render the patent error harmless beyond a reasonable doubt.

First, as we explained in part II A of this opinion, final jury instructions serve a crucial purpose distinct from that of preliminary jury instructions. This court has firmly established the principle that, although pre- liminary instructions are useful for orienting the jury, “[t]he desirability of orientation . . . does not excuse the requirement for the eventual predeliberation instructions [that] would ordinarily be included in a [final] charge in a particular case. To believe that the first is a substitute for the second, or to act as if it does not matter when but only that a charge is given, is to misapprehend the func- tion of the latter.” (Internal quotation marks omitted.) State v. Woolcock, supra, 201 Conn. 624; see also State v. Lewis, supra, 220 Conn. 614. Thus, a preliminary instruction does not ordinarily cure the trial court’s failure to give the no adverse inference instruction in the final jury instructions because it is not given “at [a] critical time, after all the evidence and after the argu- ments of counsel.” (Internal quotation marks omitted.) State v. Lewis, supra, 614.22

Second, and relatedly, the passage of time between preliminary instructions and jury deliberations creates a risk that the jury will not remember and follow the admonition contained in the instruction required by § 54-84 (b) when it is omitted from final jury instructions. See State v. Vega, supra, 36 Conn. App. 48–49. In Vega, the trial court gave a preliminary no adverse inference instruction; see id., 46; but the final jury instructions failed to satisfy § 54-84 (b) because they permitted the jury to draw fair but unfavorable inferences from the defendant’s failure to testify. See id., 44, 48. The Appel- late Court held that the preliminary instruction was insufficient to prove the harmlessness of the incorrect final charge beyond a reasonable doubt because “at least one week [had] elapsed between such instructions and the court’s final charge.” Id., 48. The proper timing of a no adverse inference instruction must be aligned with its fundamental purpose, which is to minimize juror speculation during jury deliberations; it does not serve that purpose to provide the instruction many days before deliberations begin.

In the present case, the trial court gave its preliminary jury instructions eight days before the jury began its deliberations, even longer than the weeklong gap in Vega, and its instructions to venire panels up to two months before deliberations. The state nevertheless argues that these instructions rendered any error harmless because we should assume that the jury followed them. We dis- agree. In addition to the length of time between the earlier instructions and the jury’s deliberations, the jury, during that time frame, heard five days of evi- dence and one day of closing arguments and final jury instructions. The jury also received a hard copy of the final instructions, which did not include the no adverse inference instruction, for reference during its delibera- tions. It did not receive a written copy of the preliminary and not heed some and ignore others. They are equally important.” In so instructing the jury, the court made no reference to its preliminary remarks given before the presentation of evidence. Instead, it repeated most of the instructions given in those remarks, presumably to ensure that the jury applied them to the facts presented, but altogether omit- ted the no adverse inference instruction. instructions. Under these circumstances, we perceive a realistic risk that the jurors would not remember the preliminary no adverse inference instruction during their deliberations and might speculate about the defendant’s decision not to testify.

Third, including the no adverse inference instruction in the preliminary instructions and then excluding it from the final instructions is just as likely to result in overall confusion as coherency. As part of its harmless error analysis in Vega, the Appellate Court observed that a discrepancy between the preliminary instructions and the deficient final instructions was harmful because, “[w]hen preliminary instructions are given, they do not supersede those given after evidence and arguments under our practice.” (Internal quotation marks omit- ted.) Id. The court expressed concern that the jury may have been misled by the final instructions, which failed to properly convey the requisite information to the jury. See id., 48–49. Based on both the discrepancy between the preliminary and final instructions and the length of time that had elapsed between the instructions, the Appellate Court in Vega held that there was “a reasonable possibility that the jury was misled to understand the charge to allow it to draw a fair, although unfavorable, inference from the defendant’s failure to testify.” Id., 49. The other critical component of our harmless error analysis examines the strength and nature of the state’s evidence of guilt and asks whether there is a realistic pos- sibility, in light of those particulars, that the jury reason- ably might have considered the defendant’s choice not to testify in reaching its verdict. The evidence adduced at trial and the disputed factual issues before the jury lead us to conclude that there was a reasonable possibility that “the danger of juror misunderstanding or confusion that prompted the [legislature] to adopt” the statute requiring a no adverse inference instruction came to pass. State v. Diaz, supra, 348 Conn. 765. Given the lack of physical evidence linking the defendant to the victim’s murder in the present case, the state’s theory of guilt relied heavily on the defendant’s prior statements, such as his descriptions of his movements on the day the victim disappeared, which were inconsistent with other evidence. In her closing argument, the prosecutor also drew the jury’s attention to the defendant’s failure to explain to the police what had happened to his jacket that morning and suggested that he had disposed of his jacket to change his appearance. And perhaps most criti- cally, Cruz’ testimony that the defendant had confessed to the murder was left looming and unrebutted. This all naturally would have invited the jury to speculate as to how the defendant would explain any such inconsisten- cies, seemingly inculpatory circumstantial evidence, and incriminating statements. See, e.g., State v. Ruocco, supra, 322 Conn. 805–806; State v. Thurman, supra, Conn. App. 314–15.

The nature of the evidence and the state’s theory of guilt thus would have led the jury to wonder why the defendant chose not to take the stand to explain his prior statements and could reasonably have led the jury to draw an adverse inference from his failure to testify. In other words, under these circumstances, we cannot say that the evidence of the defendant’s guilt was “so iron- clad that we can conclude, as a matter of law, that the instructional omission was harmless.” State v. Ruocco, supra, 322 Conn. 806; see also State v. Thurman, supra, Conn. App. 314–15.

For the foregoing reasons, we conclude that the trial court’s complete omission of the no adverse inference instruction required by § 54-84 (b) from the final jury instructions was patent error that resulted in manifest injustice. There is nothing opaque or confusing, as the dissent suggests; see part IV of the dissenting opin- ion; about this holding or its doctrinal implications: a criminal conviction will be reversed for plain error if the trial court fails to include the statutorily required instruction in its final instructions to the jury, unless the state can show that there is no reasonable possibility that the jury’s verdict was affected by the omission. Nor is there anything unconventional about our reasoning. By enacting § 54-84 (b), the legislature took the highly unusual step of requiring courts to instruct the jury on a particular point of law. Our cases explain that the pre- scribed instruction serves to effectuate a fundamental constitutional principle, and they treat the mandate with corresponding solemnity, pointing out that “[a] trial court’s failure to limit juror speculation on the meaning of a defendant’s silence exacts an impermissible toll on the full and free exercise of the privilege [against self- incrimination].” (Internal quotation marks omitted.)

State v. Sinclair, supra, 197 Conn. 583. As such, when a trial court omits the statutorily required instruction and that omission potentially affects the jury’s verdict, it also undermines the “integrity of and public confidence in the judicial proceedings.” (Internal quotation marks omitted.) State v. Jamison, supra, 320 Conn. 596.

Our review of the record reveals a reasonable possibil- ity that the jury believed that it could draw an adverse inference from the defendant’s exercise of his constitu- tional right not to testify at trial. Because both prongs of the plain error test have been satisfied, a new trial is required before a properly instructed jury.

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

In this opinion McDONALD, ALEXANDER, DAN- NEHY and BRIGHT, Js., concurred.