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State v. Jamison

Supreme Court of Connecticut

March 15, 2016

STATE OF CONNECTICUT
v.
KENNETH JAMISON

         Argued October 15, 2015.

          Substitute information charging the defendant with the crimes of illegal possession of a narcotic substance, illegal possession of an explosive, manufacturing a bomb, and criminal possession of a firearm, brought to the Superior Court in the judicial district of Fairfield, geographical area number two, and tried to the jury before McKeever, J.; verdict and judgment of guilty of illegal possession of a narcotic substance, illegal possession of an explosive, and manufacturing a bomb, from which the defendant appealed to the Appellate Court, Beach, Mullins and Bear, Js., which reversed in part the trial court's judgment and remanded the case for a new trial on the charges of illegal possession of an explosive and manufacturing a bomb, and the state, on the granting of certification, appealed to this court.

          SYLLABUS

         Convicted of the crimes of illegal possession of a narcotic substance, illegal possession of an explosive, and manufacturing a bomb, the defendant appealed to the Appellate Court, claiming, inter alia, that the trial court had committed plain error when it failed to give the jury a specific instruction, which defense counsel did not request, regarding the credibility of the defendant's alleged accomplice, C, who testified for the state at the defendant's trial. The charges arose from the execution of a search warrant at C's apartment, where the defendant occasionally stayed. C testified, inter alia, that she had purchased the explosive device that the defendant was convicted of possessing and that both she and the defendant had glued pennies to its exterior. The prosecutor also stipulated during trial that, although C initially was charged with illegal possession of an explosive, that charge subsequently was dropped after she told the police that the device belonged to the defendant. The Appellate Court concluded that the trial court's failure to give an accomplice credibility instruction was a patent and readily discernible error in light of case law mandating that such an instruction be given when a person who had aided in the commission of an offense with which the accused is charged testifies against the accused at trial. The Appellate Court also concluded that the error was sufficiently harmful so as to require reversal of the defendant's conviction of illegal possession of an explosive and manufacturing a bomb. The state, on the granting of certification, appealed to this court, claiming, inter alia, that the Appellate Court incorrectly concluded that the trial court had committed plain error by not providing the jury with such an instruction sua sponte. Held :

         1. The Appellate Court incorrectly determined that the trial court had committed plain error by failing to give the jury an accomplice credibility instruction regarding C's testimony because, although the failure to give such an instruction was an obvious and readily discernible error, this court could not conclude that such an omission was so harmful that a failure to reverse the defendant's conviction would result in a manifest injustice; contrary to the Appellate Court's conclusion, C's trial testimony was not inconsistent, which is a factor weighing against a finding that the defendant was denied a fair trial, and this court previously has held that, when, as in the present case, the trial court has instructed the jury on the credibility of witnesses generally and the jury is made aware of a particular witness' motivation for testifying, the court's failure to instruct the jury specifically regarding that witness' credibility does not rise to the level of reversible plain error.

         2. The defendant could not prevail on his claim that the Appellate Court's judgment could be affirmed on the alternative ground that the trial court had violated his right against self-incrimination under the state constitution by compelling him to provide a handwriting exemplar because, even if the state constitution prohibited compulsory handwriting exemplars, the evidence did not have any effect on the outcome of his trial; the jury was instructed that it could consider the testimony of the state's handwriting expert regarding the exemplar only as evidence of the defendant's consciousness of guilt with respect to a firearm charge of which the defendant was acquitted, and the evidence derived from the handwriting exemplar merely served as additional evidence connecting the defendant to C's apartment, which could not have affected the jury's verdict on the charges that he illegally possessed an explosive and manufactured a bomb.

         Matthew A. Weiner, assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, and Richard L. Palombo, Jr., senior assistant state's attorney, for the appellant (state).

         John L. Cordani, Jr., assigned counsel, for the appellee (defendant).

         Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and Robinson, Js. PALMER, J. In this opinion the other justices concurred.

          OPINION

          [320 Conn. 591] PALMER, J.

          The state appeals, following our grant of certification, from the judgment of the Appellate Court, which reversed in part the judgment of the trial court convicting the defendant, Kenneth Jamison, following a jury trial, of, inter alia, illegal possession of an explosive in violation of General Statutes § 29-348, and manufacturing a bomb in violation of General Statutes § 53-80a.[1] [320 Conn. 592] See State v. Jamison, 152 Conn.App. 753, 755, 780, 99 A.3d 1273 (2014). The state claims that the Appellate Court incorrectly concluded that, although the defendant did not request an accomplice credibility instruction, the trial court committed plain error by not providing one, sua sponte, to the jury. The defendant disputes the state's contention and also argues that, even if we agree with the state's claim, the Appellate Court's judgment can be affirmed on the alternative ground that the trial court had violated his rights under the Connecticut constitution by compelling him to provide a handwriting exemplar. We agree with the state that the trial court's failure to give an accomplice credibility instruction did not constitute plain error, and we also reject the defendant's alternative ground for affirmance. Accordingly, we reverse in part the judgment of the Appellate Court.

         The opinion of the Appellate Court sets forth the following facts, which the jury reasonably could have found, and procedural history. In 1995, " Maria Caban lived in a third floor apartment [at 400 Wood Avenue] in [the city of] Bridgeport. The defendant, her boyfriend at the time, would stay with her on occasion. On October 12, 1995, at approximately 8:40 p.m., eight police officers executed a search warrant [for] the apartment, which had front and rear entrances. One group of officers entered the rear of the apartment using a battering ram while the second group entered through the front. The group entering from the front encountered the defendant, dressed only in boxer shorts, on the stairs leading up to the apartment. The defendant was brought up into the apartment and read his Miranda [2] rights. . . .

          [320 Conn. 593] " The police searched the premises and found a pair of sneakers that contained a straw and [a] folded dollar bill. Inside of the bill was a white powdery substance that later was revealed through testing to be cocaine. When questioned, the defendant admitted that the sneakers belonged to him. The search also produced an M-1000 explosive device [M-1000] with pennies glued to its exterior,[3] a loaded firearm, an additional small amount of cocaine,[4] a weighing scale, an electric heat sealer for sealing plastic bags, and a notebook with references to drug trafficking. The police also discovered a safe containing business documents signed by the defendant. [Subsequently, Caban turned over to the police handwritten letters that the defendant had written to her during their relationship.]

         " The defendant was arrested and charged with two counts of possession of narcotics with [the] intent to sell, manufacturing a bomb, [illegal] possession of an explosive, and criminal possession of a firearm. Prior to trial, the defendant was ordered by the court to submit a handwriting exemplar for comparison with [writing in] the notebook found in the apartment. In October, 1996, the defendant was tried before a jury. [At trial, Caban testified that, although she was the one who had purchased the M-1000, she and the defendant both had glued the pennies to its exterior after watching a television program about `how . . . [to] make explosives out of things in your house and fireworks.' Caban further testified that she had testified as a state's witness in other criminal cases.] After the state [concluded its case-in-chief], the [defense] moved for a judgment [320 Conn. 594] of acquittal on all charges. The court granted the motion with respect to the two counts of possession of narcotics with [the] intent to sell and directed the state to file an amended information charging the defendant with [illegal] possession of [a narcotic substance]. The court denied the motion as to all other charges.

         " The jury found the defendant guilty of [illegal] possession of [a narcotic substance], manufacturing a bomb, and [illegal] possession of an explosive . . . [but not guilty] on the charge of criminal possession of a firearm. The court sentenced the defendant to a total effective term of thirty-seven years of incarceration, execution suspended after thirty-two years, [and] five years of probation." (Footnotes altered.) State v. Jamison, supra, 152 Conn.App. 756-57.

         The defendant appealed to the Appellate Court, claiming, inter alia, that, although the defense did not request an accomplice credibility instruction regarding Caban's testimony, it was plain error for the trial court not to have provided one, sua sponte, to the jury. Id., 755, 760. The Appellate Court agreed, concluding, first, that, because Caban had testified that she purchased the M-1000 and helped the defendant attach pennies to it, the trial court's failure to provide an accomplice credibility instruction was " a patent and readily discernible error" ; id., 762; in light of decades of case law mandating that such an instruction be given when, as in the present case, a person who aided in the commission of the offense with which the accused is charged testifies against the accused at trial. Id., 766 n.5.

         The Appellate Court further concluded that the trial court's error was sufficiently harmful as to require reversal of the defendant's conviction of manufacturing a bomb and the illegal possession of an explosive. See id., 765-66. In reaching its determination, the Appellate Court considered the several factors first identified by [320 Conn. 595] this court in State v. Ruth, 181 Conn. 187, 199-200, 435 A.2d 3 (1980)--a case involving a preserved claim of instructional error--for determining whether the harm caused by the omission of an accomplice credibility instruction warranted a new trial. See State v. Jamison, supra, 152 Conn.App. 763-64. According to the Appellate Court, those considerations favored the defendant because Caban's testimony was the only evidence linking the defendant to the explosive device, Caban provided inconsistent testimony regarding the gun found in her apartment, and the trial court did not instruct the jury to consider Caban's potential bias in assessing her credibility. Id.

         We granted the state's petition for certification to appeal, limited to the following question: " Did the Appellate Court properly reverse the defendant's convictions under the plain error doctrine where the trial court failed to give an accomplice credibility instruction?" State v. Jamison, 314 Conn. 943, 102 A.3d 1117 (2014). Because we answer the certified question in the negative, we must consider the defendant's alternative ground for affirmance, namely, that the trial court violated his rights under the Connecticut constitution when it required him to provide a handwriting exemplar. We need not address the merits of that claim, however, because we conclude that the use of the compelled handwriting exemplar at the defendant's trial was harmless.

         I

         We begin our analysis of the state's claim by setting forth the legal principles that govern our review of the 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 rectify errors committed at trial that, although unpreserved [and nonconstitutional in nature], are of such monumental [320 Conn. 596] proportion that they threaten to erode our system of justice and work a serious and manifest injustice on the aggrieved party.[5] [T]he plain error doctrine . . . is not . . . a rule of reviewability. It is a rule of reversibility. 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 integrity of and public confidence in the judicial proceedings. . . . Plain error is a doctrine that should be invoked sparingly. . . . Implicit in this very demanding standard is the notion . . . that invocation of the plain error doctrine is reserved for occasions requiring the reversal of the judgment under review. . . .

          " An appellate court addressing a claim of plain error first must determine if the error is indeed plain in the sense that it is patent [or] readily [discernible] on the face of a factually adequate record, [and] also . . . obvious in the sense of not debatable. . . . This determination clearly requires a review of the plain error claim presented in light of the record.

          " 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 appropriate. A party cannot prevail under plain error unless [320 Conn. 597] it has demonstrated that the failure to grant relief will result in manifest injustice. . . . In State v. Fagan, [280 Conn. 69, 87, 905 A.2d 1101 (2006), cert. denied, 549 U.S. 1269, 127 S.Ct. 1491, 167 L.Ed.2d 236 (2007)], we described the two-pronged nature of the plain error doctrine: [An appellant] cannot prevail under [the plain error doctrine] . . . unless he demonstrates that the claimed error is both so clear and so harmful that a failure to reverse the judgment would result in manifest injustice." (Citation omitted; emphasis in original; footnote added; internal quotation marks omitted.) State v. Sanchez, 308 Conn. 64, 76-78, 60 A.3d 271 (2013); see also State v. Coward, 292 Conn. 296, 307, 972 A.2d 691 (2009) ( " [I]t is not enough for the [party seeking plain error review] simply to demonstrate that his position is correct. Rather, [he] . . . must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary ...


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