State v. McClain, 155 A.3d 209

Defendant Tajah McClain was convicted by a jury of murder with a firearm and related charges and sentenced to a lengthy term of imprisonment.
During charge conferences the prosecutor requested a "consciousness of guilt" instruction based on alleged inconsistencies (uniform arrest report stating defendant was homeless; prior statement that he lived on Wood Avenue; sister's alibi testimony that he lived at Ogden Street).
The trial court declined to give the consciousness-of-guilt instruction; defense counsel did not object and affirmatively said there were no further issues with the charge (constituting the type of implied acquiescence described in State v. Kitchens).
On direct appeal the Appellate Court held that the Kitchens implied-waiver doctrine precluded plain-error review and affirmed the conviction.
The Connecticut Supreme Court granted certification to decide (1) whether a Kitchens waiver forecloses plain-error review, and (2) if not, whether the failure to give the consciousness-of-guilt instruction was plain error requiring reversal.

Issue	Plaintiff's Argument (State)	Defendant's Argument (McClain)	Held
Whether an implied Kitchen s waiver of an instructional error bars plain-error review	A Kitchens waiver is an intentional relinquishment and therefore precludes plain-error relief; allowing plain-error review after waiver would invite ambuscade and sandbagging	A valid claim of plain error exists independently of counsel's acquiescence; Kitchens waiver should not foreclose plain-error review	Kitchens waiver does not bar plain-error review; plain-error is a reversibility doctrine distinct from Golding/Kitchens waiver principles
Whether omission of a consciousness-of-guilt instruction was plain error requiring reversal	The omission was not an obvious, debatable error and the instruction is discretionary; prosecutor's single mention in argument did not create a "truly extraordinary" situation	The state presented evidence and argued consciousness of guilt to undercut the alibi; omission left the jury without needed guidance and was manifestly unjust	The trial court’s refusal to give the requested consciousness-of-guilt instruction was not plain error; discretion to give that instruction makes plain-error relief unlikely here

State v. Kitchens, 299 Conn. 447 (2011) (adopts implied-waiver rule when counsel has meaningful opportunity to review and affirmatively accepts jury instructions)
State v. Golding, 213 Conn. 233 (1989) (standards for appellate review of unpreserved constitutional claims)
State v. Bellamy, 323 Conn. 400 (2016) (reaffirmed Kitchens implied-waiver rule)
State v. Jamison, 320 Conn. 589 (2016) (explains plain-error doctrine's two-prong test; plain error requires obviousness and manifest injustice)
State v. Ruocco, 322 Conn. 796 (2016) (plain error may exist where mandatory instructions are omitted; distinguished here because consciousness-of-guilt instruction is discretionary)
United States v. Olano, 507 U.S. 725 (1993) (federal formulation of plain-error waiver and its relationship to intentional relinquishment)