State v. Ruocco ( 2016 )

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STATE OF CONNECTICUT v. DUSTIN RUOCCO
(SC 19387)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued January 25—officially released September 6, 2016
Jennifer F. Miller, deputy assistant state’s attorney,
with whom, on the brief, were Michael Dearington,
state’s attorney, and Marc G. Ramia, senior assistant
state’s attorney, for the appellant (state).
Alice Osedach, assistant public defender, with whom,
on the brief, was Katrina Cessna, certified legal intern,
for the appellee (defendant).
Opinion
PALMER, J. After a jury found the defendant, Dustin
Ruocco, guilty of burglary in the third degree and lar-
ceny in the third degree, the Appellate Court reversed
his conviction upon concluding that it was plain error
for the trial court not to instruct the jury, as mandated
by General Statutes § 54-84 (b),1 that it may draw no
unfavorable inferences from the defendant’s failure to
testify. State v. Ruocco, 151 Conn. App. 732, 744, 754,
95 A.3d 573 (2014). We granted the state’s petition for
certification to appeal, limited to the issue of whether
the Appellate Court properly reversed the defendant’s
conviction under the plain error doctrine. State v.
Ruocco, 314 Conn. 923, 100 A.3d 854 (2014). We affirm
the judgment of the Appellate Court.
The opinion of the Appellate Court, as supplemented
by the record, sets forth the following facts that the
jury reasonably could have found. ‘‘The defendant and
his girlfriend, Denise Cintron, rented a basement apart-
ment from Thomas Blake in [the town of] East Haven.
Blake’s property is immediately adjacent to property
owned by Donald Gennette (Donald) and Maria Gen-
nette (Maria). There is a shed in the backyard of the
Gennettes’ property located approximately twenty feet
from the Gennette-Blake property line.
‘‘On May 5, 2011, Donald and Maria went to work at
6:20 a.m. and 7:15 a.m., respectively. Maria returned
home at 11:40 a.m. to take care of her grandchild while
her son went to work. Upon arriving home, Maria
observed the defendant and Cintron sitting in the defen-
dant’s vehicle, a red Toyota Corolla. Maria then took
her dog for a walk in her backyard and observed that
the defendant’s car, although on the Blake property,
was parked immediately next to the Gennette-Blake
property line. Maria noted that the defendant’s car was
parked in close proximity to her shed and that the
location of the car was unusual because she had never
seen the car parked there before. Maria observed that
Cintron was now alone in the vehicle.
‘‘Cintron exited the vehicle and began to ask Maria
questions about her dog. This interaction was unusual,
according to Maria, because Cintron had never spoken
to her during the nine months that Cintron had resided
on the Blake property. After Cintron . . . questioned
her for about two minutes, Maria went back inside her
house. Approximately ten minutes later, at 12:15 p.m.,
Maria, her son, and [her] grandchild departed, leaving
no one in the house. Upon leaving, Maria observed that
the defendant’s car had not moved.
‘‘Maria returned home at 3:15 p.m. and noticed that
an exterior light on the shed was turned on, which she
described as unusual. Donald, an experienced electri-
cian, explained how he had wired the exterior light on
the shed. He explained that a switch inside the shed
controls the exterior light. If the switch is in one posi-
tion, the light stays on continuously. If the switch is in
the other position, the light is controlled by a motion
sensor mounted on the exterior of the shed. The motion
sensor will [cause] the light [to turn] on if someone
moves in front of [the sensor]. He explained, however,
that he configured the motion sensor so that it is dis-
abled while it is light outside. The only explanation for
the light being on during the day is that someone went
inside the shed and put the switch in the position that
turns the light on continuously. According to Donald,
on May 5, 2011, the exterior light was off when he
left for work and should have remained off throughout
the day.
‘‘Donald was ‘suspicious’ after Maria told him that
the defendant’s car had been parked on the property
line and that the exterior light on the shed was on
when she arrived home. Donald went into the shed and
noticed [that] several items were missing. He immedi-
ately called the police and spoke with his neighbor,
[Ricardo] Gallo, who resides on the other side of the
Gennettes’ property. Gallo was unemployed at the time
and testified that he was home painting his son’s room
on the date in question.
‘‘At 2 p.m. on May 5, 2011, Gallo observed the defen-
dant enter the Gennettes’ shed, remove items from it,
and place them in the trunk of [his] car, which was
parked in close proximity to the Gennette-Blake prop-
erty line. Gallo stated that, although he observed some-
one other than one of the Gennettes removing items
from their shed, he ‘[did not] want to assume that [the
defendant] was stealing’ because it was possible that
the defendant was assisting Donald with his work as
an electrician. Gallo later reported his observations to
the police after Donald notified him that he called to
report the burglary.
‘‘Officer Craig Michalowski of the East Haven Police
Department responded and met with Donald, Maria,
Gallo, and Blake. Donald told Michalowski that the
following items were taken from his shed: (1) a chain
saw; (2) a miter saw; (3) a drill; and (4) a ‘cordless kit’
containing a drill and two saws. The next day, after
Donald conducted a more thorough search of the shed,
he reported to the police that he was also missing (1)
sixty to seventy feet of ‘two aught’ copper wire, (2) ‘a
couple [of] rolls’ of ‘number two’ wire, (3) approxi-
mately 750 feet of yellow ‘Romex’ wire, and (4) approxi-
mately 750 feet of white ‘Romex’ wire. Donald had this
wire on hand in order to perform a specific modification
to his house’s electrical system.
‘‘After his initial investigation, Michalowski identified
the defendant as a potential suspect . . . . He contin-
ued the investigation by checking the records from area
scrap yards and pawn shops in order to determine
whether the defendant sold any of the items taken from
the shed. Michalowski explained that when someone
sells something to either a scrap yard or [a] pawn shop,
the businesses keep a record of the date and time of
the sale, the item sold, and the seller’s name and
address. The businesses send these records to the
police department approximately every six weeks.
Michalowski checked the records on file at the police
department and found that, at 6:55 a.m. on the day after
the burglary, the defendant sold wire to a scrap yard
that was consistent with the type of wire reported miss-
ing from the Gennettes’ shed.
‘‘The defendant was arrested on June 14, 2011, and
charged with burglary in the third degree and larceny
in the third degree. At trial, the defendant [who did not
testify, presented an alibi witness who claimed that
the defendant was with him at the time of the alleged
burglary. The defendant also] argued that Donald had
lied about the amount of wire taken in order to defraud
his insurance company. He specifically argued that Don-
ald’s account of the amount and value of the wire taken
from the shed was inconsistent. Moreover, the defen-
dant argued that the amount of wire purportedly in the
shed was disproportionate to the amount necessary to
modify the electrical system for the Gennettes’ house,
as Donald had claimed. [In addition, the defendant
maintained that the amount of wire and tools Donald
claimed had been stolen could not have fit inside the
trunk of the defendant’s vehicle. In light of the forego-
ing, the defendant further argued that] the state did
not prove beyond a reasonable doubt that the property
taken was worth more than $2000, the amount neces-
sary to [sustain a conviction] of larceny in the third
degree pursuant to [General Statutes] § 53a-124 (a) (2).’’
(Footnotes omitted.) State v. Ruocco, supra, 151 Conn.
App. 735–38.
At the conclusion of the evidentiary portion of the
trial, the court instructed the jury on the governing
legal principles. Although the defense made no contrary
request, the trial court did not instruct the jury, as
required by § 54-84 (b), that it could draw no unfavor-
able inferences from the defendant’s failure to testify.
Thereafter, the jury returned a verdict of guilty on both
counts, and the trial court rendered judgment in accor-
dance with the verdict.
The defendant appealed to the Appellate Court,
claiming, inter alia, that the trial court’s failure to
instruct the jury in accordance with § 54-84 (b) was
plain error entitling him to a new trial. The Appellate
Court agreed, stating in relevant part: ‘‘[T]he total omis-
sion of the no adverse inference instruction is plain
error that is not subject to a harmless error analysis.
The unconditional language of the statute is a legislative
mandate, and the failure to use that language is a pivotal
aspect of the defendant’s privilege against self-incrimi-
nation. The statutory language is based on a constitu-
tional right, and its omission can never be harmless.’’2
(Internal quotation marks omitted.) Id., 743–44, quoting
State v. Suplicki, 33 Conn. App. 126, 130, 634 A.2d 1179
(1993), cert. denied, 229 Conn. 920, 642 A.2d 1216
(1994).
On appeal, the state contends that the Appellate
Court incorrectly determined that the total omission of
the statutorily required no adverse inference instruction
was not subject to harmless error analysis. The state
further maintains that, if the Appellate Court had under-
taken such an analysis, as it was required to do, it would
have recognized that the defendant was not prejudiced
by the omission of the required instruction because ‘‘the
balance of the instructions facilitated the appropriate
application of the law’’ and because the evidence of the
defendant’s guilt was so overwhelming that the verdict
would have been the same even if the instruction had
been given. We are not persuaded.
The following legal principles guide our analysis of
the state’s claim. ‘‘It is well established that the plain
error doctrine, codified at Practice Book § 60-5, is an
extraordinary remedy used by appellate courts to rec-
tify errors committed at trial that, although unpreserved
[and nonconstitutional in nature], are of such monu-
mental proportion that they threaten to erode our sys-
tem of justice and work a serious and manifest injustice
on the aggrieved party. [T]he plain error doctrine . . .
is not . . . a rule of reviewability. It is a rule of revers-
ibility. That is, it is a doctrine that this court invokes
in order to rectify a trial court ruling that, although
either not properly preserved or never raised at all in
the trial court, nonetheless requires reversal of the trial
court’s judgment . . . for reasons of policy. . . . In
addition, the plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceed-
ings.’’ (Footnote omitted; internal quotation marks
omitted.) State v. Jamison, 320 Conn. 589, 595–96, 134
A.3d 560 (2016).
‘‘Although a complete record and an obvious error
are prerequisites for plain error review, they are not,
of themselves, sufficient for its application. . . . [I]n
addition to examining the patent nature of the error,
the reviewing court must examine that error for the
grievousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate.’’ (Internal quotation marks omitted.) Id., 596.
‘‘This 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 defendant taken
an exception at trial. In each of them we chose to review
the claim on its merits. [See, e.g.] . . . State v. Tatem,
194 Conn. 594, 595, 483 A.2d 1087 (1984); State v. Carri-
one, 188 Conn. 681, 685 [and] n.3, 453 A.2d 1137 (1982),
cert. denied, 460 U.S. 1084, 103 S. Ct. 1775, 76 L. Ed.
2d 347 (1983); State v. Boulware, 183 Conn. 444, 446,
441 A.2d 1 (1981); State v. Carter, 182 Conn. 580, 581,
438 A.2d 778 (1980); State v. Burke, 182 Conn. 330, 331,
438 A.2d 93 (1980). . . . [W]e explained that noncom-
pliance with § 54-84 (b) is [patent] error because the
statute serves to effectuate the fundamental constitu-
tional 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. Without proper instructions, as the
United States Supreme Court and this court have . . .
independently recognized, a jury may prejudge a defen-
dant because he failed to take the stand and protest his
innocence in the face of a criminal accusation. Carter v.
Kentucky, 450 U.S. 288, 305, 101 S. Ct. 1112, 67 L. Ed.
2d 241 (1981) . . . . 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]. [Id.] That
rationale is fully appropriate to the application of the
mandate of § 54-84 (b) . . . .’’ (Citations omitted; foot-
note omitted; internal quotation marks omitted.) State
v. Sinclair, 197 Conn. 574, 582–83, 500 A.2d 539 (1985).
Accordingly, because the trial court’s omission of the
no adverse inference instruction ‘‘is of constitutional
dimension, [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.’’3 (Internal quota-
tion marks omitted.) State v. Townsend, 206 Conn. 621,
626, 539 A.2d 114 (1988).
In State v. Sinclair, supra, 197 Conn. 574, we queried,
in dictum, ‘‘whether total noncompliance with § 54-84
(b) can ever be harmless.’’ Id., 584. We ultimately deter-
mined, however, that it was unnecessary to resolve that
question because our review of the record persuaded
us that the state had failed to prove the harmlessness
of the error. Id., 586. Thereafter, in State v. Suplicki,
supra, 33 Conn. App. 126, the Appellate Court elected
to decide the question that we left open in Sinclair and
concluded that the total omission of the no adverse
inference instruction is not amenable to harmless error
analysis. Id., 130. On the basis of its conclusion in
Suplicki, the Appellate Court reversed the defendant’s
conviction in the present case. See State v. Ruocco,
supra, 151 Conn. App. 743–44.
We also need not decide that question today because,
even if a violation of § 54-84 (b) is subject to harmless
error analysis, the state cannot establish that the viola-
tion in the present case was harmless beyond a reason-
able doubt. As we previously indicated, the defendant
presented an alibi witness who testified that the defen-
dant was with him at the time of the alleged burglary.
Inconsistencies in Donald’s testimony regarding the
amount of wire that was taken and what he planned to
do with it also lent support to the defendant’s con-
tention that Donald, with the assistance of Gallo, had
lied to the police about the burglary in order to defraud
Donald’s insurance company. Thus, although the state’s
case was sufficient to support the jury’s finding of
guilt—in addition to the testimony of Donald and Maria,
there was other testimony that, after the burglary, the
defendant sold a small quantity of electrical wire ‘‘con-
sistent’’ with the wire that was reported missing—it
was not so ironclad that we can conclude, as a matter
of law, that the instructional omission was harmless.
Our conclusion is consistent with our decision in
State v. Dudla, 190 Conn. 1, 458 A.2d 682 (1983). In that
case, a police officer testified that he witnessed the
defendant, James R. Dudla, toss a gun near where he
was standing during a routine traffic stop. See id., 6–7.
In reversing Dudla’s conviction for illegal possession
of a firearm, this court observed that, ‘‘[a]lthough the
evidence presented might have been sufficient to sup-
port a conviction, this court will not presume to hold
that the jury necessarily found [the officer’s] testimony
to be true. The jury [is], of course, the sole [judge] of
[the] credibility of witnesses . . . [and is] free to reject
even uncontradicted testimony, if [it does] not find it
credible. . . . The jury might have doubted the uncor-
roborated testimony offered [to establish Dudla’s] guilt
. . . but [found] him [guilty] because he did not take
the stand to deny his guilt.’’ (Citations omitted.) Id.,
7. ‘‘Because the jury might have considered [Dudla’s]
failure . . . to testify in determining the likelihood that
the officer’s testimony was true, [the court] cannot find
the trial court’s failure to give a no inference charge to
be harmless error.’’ (Internal quotation marks omitted.)
Id. Likewise, given the discrepancies in Donald’s testi-
mony and the fact that there was only one eyewitness,
namely, Gallo, we cannot discount the possibility that
the jury might have doubted the Gennettes’ and Gallo’s
testimony but found the defendant guilty because of
his failure to testify.
Finally, we reject the state’s contention that the
defendant was not prejudiced by the omission of the
instruction because ‘‘the balance of the instructions
facilitated the appropriate application of the law.’’ Spe-
cifically, the state argues that, because the jury was
instructed regarding the presumption of innocence and
the state’s burden of proof, and because the jury is
presumed to have followed those instructions, there is
no reasonable probability that the jurors would have
speculated as to the defendant’s reasons for not testi-
fying. In support of this claim, the state also relies on
the fact that, during voir dire, the venire panel was
instructed not to ‘‘hold [it] against him’’ if the defendant
decided not to take the stand. As the state acknowl-
edges, however, this court has considered whether the
charge as a whole, including instructions given during
voir dire, adequately conveyed the substance of the
instruction mandated by § 54-84 (b) when that charge
included an instruction that deviated only slightly from
the statutory language. See, e.g., State v. Marra, 195
Conn. 421, 443–44, 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 requirement was
conveyed [by the balance of the charge]’’); State v. Car-
rione, supra, 188 Conn. 684–86 (harmless error when
jurors were told ‘‘to draw no legal impressions from
the fact that [the defendant] did not take the stand and
testify’’ because, immediately thereafter, they were also
told ‘‘not to penalize [the defendant] for not testifying
and taking advantage of her constitutional right’’ [inter-
nal quotation marks omitted]). When, however, as in
the present case, the jury charge contains no language
that resembles the instruction mandated by § 54-84 (b),
we cannot assume that the jurors had sufficient knowl-
edge 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. Cf.
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 and defendant’s right to remain silent
did not cure defects in § 54-84 [b] instruction). Accord-
ingly, the state has failed to demonstrate that a new
trial is unnecessary despite the trial court’s complete
omission of the instruction mandated by § 54-84 (b).
The judgment of the Appellate Court is affirmed.
In this opinion ROGERS, C. J., and ZARELLA, EVE-
LEIGH and McDONALD, Js., concurred.
1
General Statutes § 54-84 (b) provides: ‘‘Unless the accused requests other-
wise, the court shall instruct the jur[ors] 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.’’
2
‘‘The defendant’s right not to testify is rooted in the privilege against
self-incrimination under both the federal and the state constitutions. The
fifth amendment to the United States constitution provides that no person
shall be compelled in any criminal case to be a witness against himself.
That provision [in conjunction with the due process clause of the fourteenth
amendement] acts as a restraint [on] the individual states . . . . Malloy v.
Hogan, 378 U.S. 1, [6] 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). Article first,
§ 8, of the Connecticut constitution affords criminal defendants a similar
protection in language at least as broad as its federal counterpart. That
section, which sets forth the rights of accused persons in criminal prosecu-
tions, provides that [n]o person shall be compelled to give evidence against
himself . . . .’’ (Internal quotation marks omitted.) State v. Yurch, 229 Conn.
516, 521–22 n.5, 641 A.2d 1387, cert. denied, 513 U.S. 965, 115 S. Ct. 430,
130 L. Ed. 2d 343 (1994).
3
We note that, ordinarily, 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 injustice.’’ (Internal quotation marks
omitted.) State v. Jamison, supra, 320 Conn. 597. We previously have deter-
mined, 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, 229 Conn. 516, 523, 641 A.2d 1387, cert.
denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343 (1994).