Opinion
(11282)
Argued May 4, 1993
Decision released June 22, 1993
Substitute information charging the defendant with three counts of the crime of making home improvements without being registered and with the crime of offering to make home improvements without being registered, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before Lager, J.; verdict and judgment of guilty, from which the defendant appealed to this court. Reversed; new trial.
Louis S. Avitabile, with whom, on the brief, was David M. Abbamonte, for the appellant (defendant).
Stephen R. Park, assistant attorney general-special assistant state's attorney, with whom were Lisa C. Mueller, law student intern, and, on the brief, Richard Blumenthal, attorney general, for the appellee (state).
The issue in this case is whether the trial court's charge violated General Statutes 54-84 (b). Subsection (b) provides: "Unless 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 defendant did not testify at his trial and did not request the court to refrain from giving the statutory charge. Rather, the defendant twice requested that the statutory charge be given.
The trial court then charged the jury that "no unreasonable inference may be drawn from the fact that a defendant decides not to testify." The defendant claims that the trial court's use of the word "unreasonable" instead of "unfavorable" is plain error and therefore entitles the defendant to a new trial.
This case is governed by State v. Tatem, 194 Conn. 594, 483 A.2d 1087 (1984). Any but the most minor deviation from the language of General Statutes 54-84 (b) is plain error. Id., 598; State v. Thurman, 10 Conn. App. 302, 309, 523 A.2d 891, cert. denied, 204 Conn. 805, 528 A.2d 1152 (1987). If the substantive meaning of the statute is changed in the charge, that change constitutes plain error. State v. Thurman, supra 310-13. State v. Tatem, supra, 601, establishes that the use of "Unreasonable" in place of "Unfavorable" changes the substantive meaning of the statute and is therefore plain error.