State v. McClain, SC19532

This is Chief Justice Rogers’s concurring opinion in State v. McClain, joined by Justices Palmer and McDonald.
The concurrence agrees with the majority that an implied waiver of Golding review under State v. Kitchens does not prevent appellate courts from finding plain error in jury instructions and that the instructions in McClain were proper.
Rogers reiterates her long-standing view that Kitchens was wrongly decided and should be overruled because it limits routine appellate review of unpreserved constitutional claims in jury instructions.
She argues that plain error review is an inadequate substitute for Golding review: it is narrower, harder for defendants to win, and ill-suited for novel claims or those requiring overruling precedent.
Rogers emphasizes that regular appellate review under Golding yields important benefits for defendants and society that may outweigh the procedural efficiencies Kitchens sought.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an implied waiver under Kitchens precludes appellate review	State: Kitchens allows deeming claims waived so no Golding review	McClain: Waiver should not bar review for plain error or constitutional claims	Court: Implied waiver does not preclude plain error review; instructions proper
Whether Kitchens was correctly decided	State: Kitchens promotes efficiency by treating unpreserved claims as waived	McClain: Kitchens properly enforces waiver doctrine	Rogers: Kitchens was wrongly decided and should be overruled; she dissents from that rule
Whether plain error is an adequate substitute for Golding review	State: Plain error preserves judicial economy and addresses serious mistakes	McClain: Plain error protects defendants despite waiver	Rogers: Plain error is inadequate—narrower and harder to prevail under; not good for novel claims
Whether the jury instructions in this case warranted reversal	State: Instructions were proper	McClain: Claimed constitutional error in instructions	Court: No reversible error; instructions were proper

State v. Kitchens, 299 Conn. 477 (rule deeming some unpreserved claims waived; Rogers argues it was wrongly decided)
State v. Golding, 213 Conn. 233 (standard for appellate review of unpreserved constitutional claims)
State v. Bellamy, 323 Conn. 400 (Rogers concurrence elaborating objections to Kitchens and defending Golding review)