STATE v. TAJAH MCCLAIN, SC 19532

Judicial District of Fairfield

 Criminal; Whether Defendant’s Implied Waiver of Claim of Instructional Error Under State v. Kitchens Precludes Application of Plain Error Doctrine.  The defendant was convicted of murder, assault in the first degree and carrying a pistol without a permit.  He appealed, claiming that that the trial court erred in failing to instruct the jury on the doctrine of consciousness of guilt.  The defendant conceded that he had not raised the claim of instructional error in the trial court and that his unpreserved claim was not reviewable under State v. Golding because he had implicitly waived it under State v. Kitchens, 299 Conn. 447 (2011).  Kitchens holds that a defendant implicitly waives a claim of instructional error and cannot prevail under Golding when he affirmatively accepts the jury instructions proposed or given after the trial court has provided counsel with the proposed jury instructions, allowed a meaningful opportunity for their review, and solicited comments from counsel regarding changes or modifications to the instructions.  The defendant argued that his conviction should nonetheless be reversed because the trial court’s failure to instruct the jury on consciousness of guilt constituted plain error.  An appellate court will apply the plain error doctrine to afford relief even on an unpreserved claim where the existence of trial court error is so obvious that it affects the fairness and integrity of—and public confidence in—judicial proceedings.  The Appellate Court (154 Conn. App. 281) affirmed the defendant’s conviction, holding that the defendant’s Kitchens waiver of his claim of instructional error precluded application of the plain error doctrine.  The Supreme Court granted the defendant certification to appeal, and it will consider whether the Appellate Court properly ruled that the defendant’s Kitchens waiver precluded any consideration of the plain error doctrine and, if not, whether the trial court’s failure to instruct the jury on consciousness of guilt constituted plain error requiring reversal of the judgment of conviction.