State v. Jamison ( 2016 )

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STATE OF CONNECTICUT v. KENNETH JAMISON
(SC 19409)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Robinson, Js.
Argued October 15, 2015—officially released March 15, 2016
Matthew A. Weiner, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Richard L. Palombo, Jr., senior assistant
state’s attorney, for the appellant (state).
John L. Cordani, Jr., assigned counsel, for the appel-
lee (defendant).
Opinion
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, fol-
lowing 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 Stat-
utes § 53-80a.1 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 accom-
plice 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 Octo-
ber 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 offi-
cers 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 Miranda2 rights.
. . .
‘‘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 discov-
ered a safe containing business documents signed by
the defendant. [Subsequently, Caban turned over to the
police handwritten letters that the defendant had writ-
ten 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 explo-
sives out of things in your house and fireworks.’ Caban
further testified that she had testified as a state’s wit-
ness in other criminal cases.] After the state [concluded
its case-in-chief], the [defense] moved for a judgment
of acquittal on all charges. The court granted the motion
with respect to the two counts of possession of narcot-
ics 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] pos-
session 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. Jami-
son, 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 discern-
ible 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 commis-
sion 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
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 Appel-
late Court, those considerations favored the defendant
because Caban’s testimony was the only evidence link-
ing the defendant to the explosive device, Caban pro-
vided 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 con-
victions under the plain error doctrine where the trial
court failed to give an accomplice credibility instruc-
tion?’’ 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 vio-
lated his rights under the Connecticut constitution
when it required him to provide a handwriting exem-
plar. We need not address the merits of that claim,
however, because we conclude that the use of the com-
pelled 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 com-
mitted at trial that, although unpreserved [and noncon-
stitutional in nature], are of such monumental
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 reversibil-
ity. 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 extraordi-
nary 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 spar-
ingly. . . . Implicit in this very demanding standard is
the notion . . . that invocation of the plain error doc-
trine 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 deter-
mination 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 appro-
priate. A party cannot prevail under plain error unless
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; foot-
note 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 indisput-
able as to warrant the extraordinary remedy of reversal.
. . . [U]nder the second prong of the analysis we must
determine whether the consequences of the error are
so grievous as to be fundamentally unfair or manifestly
unjust.’’ [Citations omitted.]). Finally, our review of the
Appellate Court’s conclusion with respect to plain error
is plenary. See, e.g., State v. Sanchez, supra, 80.
With regard to individualized credibility instructions,
we consistently have held that ‘‘a defendant is not enti-
tled to an instruction singling out any of the state’s
witnesses and highlighting his or her possible motive
for testifying falsely. . . . An exception to this rule,
however, involves the credibility of accomplice wit-
nesses. . . . [When] it is warranted by the evidence, it
is the court’s duty to caution the jury to scrutinize
carefully the testimony if the jury finds that the witness
intentionally assisted in the commission, or if [he or
she] assisted or aided or abetted in the commission, of
the offense with which the defendant is charged. . . .
[I]n order for one to be an accomplice there must be
mutuality of intent and community of unlawful purpose.
. . . With respect to the credibility of accomplices, we
have observed that the inherent unreliability of accom-
plice testimony ordinarily requires a particular caution
to the jury . . . .’’ (Citation omitted; emphasis omitted;
internal quotation marks omitted.) State v. Moore, 293
Conn. 781, 823–24, 981 A.2d 1030 (2009), cert. denied,
560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306 (2010);
see also State v. Diaz, 302 Conn. 93, 115–16, 25 A.3d
594 (2011) (‘‘the rationale underlying the requirement
of a special credibility instruction in cases involving
accomplice or complainant testimony . . . [is] that the
accomplice or complaining witness has a powerful
motive to falsify his or her testimony’’ [internal quota-
tion marks omitted]); State v. Stebbins, 29 Conn. 463,
473 (1861) (court’s failure to caution jury regarding
accomplice testimony was ‘‘a clear omission of judicial
duty’’). The trial court’s duty to caution the jury ‘‘is
implicated only [when] the trial court has before it
sufficient evidence to make a determination that there
is evidence that [a] witness was in fact an accomplice.’’
(Internal quotation marks omitted.) State v. Gentile, 75
Conn. App. 839, 855, 818 A.2d 88, cert. denied, 263 Conn.
926, 823 A.2d 1218 (2003). With these principles in mind,
we turn to the state’s claim.
With respect to the first prong of the plain error test,
we agree with the defendant that the trial court’s failure
to give an accomplice credibility instruction was an
obvious and readily discernible error.6 As we have
explained, however, the defendant also must demon-
strate, under the second prong of the plain error test,
that the omission was so harmful or prejudicial that it
resulted in manifest injustice. State v. Sanchez, supra,
308 Conn. 77, 78. This stringent standard will be met
only upon a showing that, as a result of the obvious
impropriety, the defendant has suffered harm so griev-
ous that fundamental fairness requires a new trial.
In State v. Ruth, supra, 181 Conn. 187, this court first
identified the following four factors that an appellate
court should consider when evaluating whether the trial
court’s decision not to give an accomplice credibility
instruction deprived the defendant of a fair trial:
‘‘whether (1) the accomplice testimony was corrobo-
rated by substantial independent evidence of guilt, (2)
the accomplice testimony was consistent, (3) the
accomplices’ potential motives for falsifying their testi-
mony were brought to the jury’s attention, and (4) the
court’s instructions to the jury suggested that the wit-
nesses might have an interest in coloring their testi-
mony.’’ State v. Moore, supra, 293 Conn. 825; see State
v. Ruth, supra, 199–200. As we explained in Moore,
however, although we apply the Ruth factors to pre-
served and unpreserved claims alike, the standard of
review is significantly more demanding when a claim
is brought pursuant to the plain error doctrine. State
v. Moore, supra, 828 (defendant’s burden when claim
was preserved is ‘‘not as demanding because the court
[is] not required to conclude that the error was so clear
and harmful that reversal [is] required to avoid manifest
injustice’’). Indeed, as the defendant recognizes, prior
to the Appellate Court’s decision in this case, no court
of this state ever had reversed a criminal conviction
under the plain error doctrine on the basis of a trial
court’s failure to give an accomplice credibility instruc-
tion. This is no doubt attributable to the fact that, ‘‘[i]n
order to prevail under the plain error doctrine, the
defendant [is] required to establish not only that his
conviction . . . affects the fairness and integrity of and
public confidence in the judicial proceedings . . . but
that it is more probable than not that the jury was
misled by the trial court’s . . . error into [finding] him
[guilty of the charged offenses].’’ (Citation omitted;
internal quotation marks omitted.) State v. Kulmac, 230
Conn. 43, 74 n.19, 644 A.2d 887 (1994).
On appeal, the state argues that the Appellate Court
failed to apply this heightened standard of review in
concluding that the defendant had met his burden of
establishing a manifest injustice simply by demonstra-
ting that three of the four Ruth factors weighed in his
favor. The state first contends that only two of the
four relevant factors support the defendant’s claim. The
state further argues that, in any event, to prevail under
the plain error doctrine, the defendant was required to
establish, at a minimum, that the trial court’s omission
likely resulted in the defendant’s conviction, which, the
state claims, the defendant has failed to do. The state
also maintains that the Appellate Court, in evaluating
harm solely on the basis of the Ruth factors, failed to
explain why the trial court’s omission so undermines
public confidence in the verdict and in the judicial pro-
ceeding as a whole that a failure to reverse the defen-
dant’s conviction would result in manifest injustice.
Finally, the state argues that this court previously has
determined, in State v. Diaz, supra, 302 Conn. 103–106,
and State v. Ebron, 292 Conn. 656, 675–76, 975 A.2d 17
(2009), overruled in part on other grounds by State v.
Kitchens, 299 Conn. 447, 10 A.3d 942 (2011), that, when
the substantive concerns underlying a special credibil-
ity instruction are brought to the jury’s attention and
the jury is given a general credibility instruction, it is
unlikely that the omission of a special credibility
instruction could be so grievous an error as to constitute
plain error.
With respect to the state’s first contention, we agree
that the Appellate Court incorrectly determined that
three of the four Ruth factors favored the defendant
when, in fact, only two of them weigh in his favor.
Specifically, the state argues, with respect to the second
Ruth factor, that the Appellate Court incorrectly con-
cluded that it favored the defendant because Caban’s
testimony was inconsistent. More specifically, the state
takes issue with the Appellate Court’s statement that,
‘‘[o]n direct examination, [Caban] indicated that the gun
belonged to the defendant but, later, on cross-examina-
tion, stated that it belonged to another person.’’ State
v. Jamison, supra, 152 Conn. App. 763. A review of
Caban’s testimony indicates that, on direct examina-
tion, the assistant state’s attorney (prosecutor) showed
Caban a photograph of the gun found in her apartment
and asked her whether she recognized it. Caban
responded that it was ‘‘[the defendant’s] gun . . . .
Well, the gun he was carrying.’’ Later, on cross-examina-
tion, Caban testified that she had seen the defendant
with the gun in her apartment. In response, defense
counsel stated, ‘‘as a matter of fact, that gun is not [the
defendant’s] but is really [another man’s] gun, isn’t that
true?’’ Caban replied, ‘‘Yeah.’’ On redirect examination,
Caban clarified that, although the gun belonged to
another person, the defendant was the person who was
carrying it at the time of his arrest. As the state main-
tains, when read in context, it is clear that Caban’s
cross-examination testimony regarding the gun was not
inconsistent with her direct examination testimony; her
testimony on cross-examination reflects the fact, rather,
that, as the questions pertaining to the ownership of
the gun became more specific, her answers became
more specific. Indeed, even on direct examination,
when asked whether she recognized the gun, Caban,
after initially stating that it was the defendant’s gun,
immediately clarified, ‘‘[w]ell, the gun he was carrying.’’
More important, however, we agree with the state
that this claim is governed by this court’s recent deci-
sions in Ebron and Diaz, in which we rejected claims
that the trial court committed plain error by failing to
give, in accordance with State v. Patterson, 276 Conn.
452, 469–70, 886 A.2d 777 (2005), a special credibility
instruction regarding the testimony of a jailhouse infor-
mant. In Patterson, this court concluded that ‘‘an infor-
mant who has been promised a benefit by the state in
return for his or her testimony has a powerful incentive,
fueled by self-interest, to implicate falsely the accused.
Consequently, the testimony of such an informant, like
that of an accomplice, is inevitably suspect.’’ Id., 469.
We also concluded that, ‘‘[b]ecause the testimony of an
informant who expects to receive a benefit from the
state in exchange for his or her cooperation is no less
suspect than the testimony of an accomplice who
expects leniency from the state’’; id., 470; the trial court
must instruct the jury that an informant’s testimony
‘‘[should] be reviewed with particular scrutiny and
weighed . . . with greater care than the testimony of
an ordinary witness.’’ (Internal quotation marks omit-
ted.) Id., 465.
In rejecting the defendant’s claim of plain error in
Diaz, we explained that, in Ebron, this court concluded
that ‘‘the trial court’s failure to give, sua sponte, a jail-
house informant instruction pursuant to Patterson does
not constitute plain error when the trial court has
instructed the jury on the credibility of witnesses [gen-
erally] and the jury is aware of the witness’ motivation
for testifying [falsely].’’ State v. Diaz, supra, 302 Conn.
103, citing State v. Ebron, supra, 292 Conn. 675–76. In
light of Ebron, we concluded in Diaz that, even though
the trial court had a duty to caution the jury regarding
the informant’s testimony, ‘‘the court’s failure to do so
sua sponte did not rise to the level of reversible plain
error . . . because the trial court gave a general credi-
bility instruction and the jury was made aware of [the
informant’s] motivation for testifying.’’ State v. Diaz,
supra, 105.
As in Diaz and Ebron, the jury in the present case
was well aware of Caban’s motivation for testifying
against the defendant. Indeed, the central theme of
defense counsel’s cross-examination of Caban and clos-
ing argument was that Caban had falsely implicated the
defendant in order to avoid being prosecuted for the
offenses with which the defendant was charged. With
respect to that cross-examination, defense counsel
questioned Caban in relevant part:
‘‘[Defense Counsel]: And you’re claiming that you’re
not receiving any special treatment for your testimony
here today?
‘‘[Caban]: I’m not.
‘‘[Defense Counsel]: You’re not, okay. But, at the time
of your arrest, you were found to have a gun in your
apartment, correct?
‘‘[Caban]: Yes.
‘‘[Defense Counsel]: That explosive [was] in your
apartment, correct?
‘‘[Caban]: Yes.
‘‘[Defense Counsel]: And you were never charged
with either one of those [possession] crimes, were you?
You weren’t charged with possession of a gun, were
you?
‘‘[Caban]: No.
‘‘[Defense Counsel]: Okay. And you weren’t charged
with possession of a bomb, were you?
‘‘[Caban]: It was brought up, yeah.
‘‘[Defense Counsel]: But were you ever charged
with it?
‘‘[Caban]: I’m not sure. You’ll have to ask my pub-
lic defender.
‘‘[Defense Counsel]: You’re not sure what you’re
charged with?
‘‘[Caban]: I’m not sure if I was charged with [posses-
sion of] the explosive or not. I know I was brought up
with it. It was a charge, and I’m not sure.
‘‘[Defense Counsel]: Okay.’’
Following this colloquy, the prosecutor agreed to
stipulate that, although Caban initially had been
charged with possession of an explosive device, that
charge was subsequently dropped in light of Caban’s
statement to the police that the device belonged to the
defendant. Specifically, the prosecutor stipulated that
‘‘right now, as of today, she’s not charged with posses-
sion of an explosive . . . .’’ Thereafter, during closing
argument, defense counsel argued to the jury that
Caban had a powerful motive to testify against the
defendant. Specifically, defense counsel stated: ‘‘We
know that it’s her apartment, okay? It’s her apartment
in which they found the gun, but she wasn’t charged
with possession of a gun, was she? Oh, that’s right, she
was at first, but then later [the charge was dropped].
‘‘What else do we know? We know that she wasn’t
charged with possession of a bomb, even though it was
in her apartment.
***
‘‘She stated she bought this. She helped make it, but
she’s not charged with manufacturing . . . a bomb. We
know that, originally, she might have been or she was,
but she was not [charged at the time of her testimony],
but she claims that she did not get anything for her
testimony. . . . How could you have all of this evi-
dence found in your apartment and not possess it? And,
as a jury, you can say to yourself, that doesn’t make
sense, and I don’t believe it.
***
‘‘Caban is an admitted drug dealer. . . . She bagged
up cocaine for sale, yet she’s pointing to [the defendant],
he’s the one, not me. It’s not my drugs, guns or bombs.
I don’t know anything. It’s him.’’
Thus, defense counsel argued to the jury that it was
highly suspicious that Caban could admit to purchasing,
possessing and manufacturing an explosive device but
not be charged with any crime in connection with those
acts. Her motive to testify, he concluded, ‘‘stands for
itself . . . and you can take [her motive] into account
and say, well, of course she’s going to say . . . none
of it is hers. What do you think she’s going to say, it’s
all mine?’’
Thereafter, in its final charge, the court instructed the
jury that ‘‘[t]he credibility of witnesses and the weight
to be given their testimon[y] are matters which are
especially within your [province] to determine. I sug-
gest, however, that you consider some guidelines. No
fact is to be determined merely by the number of wit-
nesses testifying for or against it. It is the quality and
not the quantity of testimony that controls. There is no
such thing as legal equality of credibility. The testimony
of every witness is to be weighed for what it seems to
you to be worth in light of its character, the demeanor
of the witness as it bears on credibility, the substance
of the testimony, the probability or improbability that
what the witness says is true. The jury is the sole arbiter
of what testimony is to be believed and what testimony
is to be rejected. This includes the right to [believe]
part of the testimony of a particular witness and to
reject the remainder. Conversely, you have the right to
conclude that you cannot accept any of the testimony
of a witness whom you believe has intentionally lied
to you.
***
‘‘In weighing the testimony of an expert, you apply
to him the same general rules that you apply to all
witnesses, such as bias and interest in the case.’’
In light of the foregoing, we cannot conclude that
the omission of the accomplice credibility instruction
was so harmful that a failure to reverse the defendant’s
conviction of possession of an explosive device and
manufacturing a bomb would result in a manifest injus-
tice. As we have explained, the fundamental purpose
of an accomplice credibility instruction is to impress
on the jury that an accomplice’s testimony should be
closely scrutinized because he or she may be testifying
in the hope or upon a promise of leniency from the state.
When that concern is brought to the jury’s attention,
however, as it clearly was in the present case, and the
jury is given a general credibility instruction that it is
presumed to have followed, we see no reason to con-
clude that the trial court’s failure to give an accomplice
credibility instruction likely was so harmful that rever-
sal is the only way to avoid manifest injustice to the
defendant and to preserve public confidence in the fair-
ness of the judicial proceeding.
We disagree with the defendant that ‘‘Caban’s motives
for lying were only weakly brought to the jury’s atten-
tion’’ and, therefore, that the present case is distinguish-
able from Ebron and Diaz. Although defense counsel
might have done a better job impeaching Caban’s credi-
bility, the jury must be credited with the intelligence
to understand the central premise of defense counsel’s
commonsense argument, namely, that Caban’s testi-
mony was not worthy of belief because she was testi-
fying in the hope of receiving leniency—indeed, immu-
nity—from the state. This argument was strongly rein-
forced by the fact that Caban was not being charged
with any offense at the time of the defendant’s trial,
even though she freely admitted to purchasing, pos-
sessing and manufacturing the explosive device. We
also disagree with the defendant’s contention that,
because the trial court did not specifically instruct the
jury that it could consider the bias and potential interest
of lay witnesses, ‘‘the court did not give the jury any
legal basis to use . . . defense [counsel’s] arguments,’’
and, therefore, that the jury would have felt compelled
to disregard those arguments ‘‘as legally irrelevant.’’
First, contrary to the defendant’s contention, the trial
court did instruct the jury that it could consider the
bias and interest of lay witnesses. Specifically, the court
stated that, ‘‘[i]n weighing the testimony of an expert,
you apply to him the same general rules that you apply
to all witnesses, such as bias and interest in the case.’’
(Emphasis added.) Similarly, by instructing the jury that
it was the sole arbiter of credibility and could reject
all or part of a witness’ testimony for any reason if it
believed that the witness was lying, the court necessar-
ily provided the jury with a sound basis for rejecting
Caban’s testimony if it was persuaded by defense coun-
sel’s argument that her testimony was motivated by a
desire to save herself from prosecution. Accordingly,
we agree with the state that the Appellate Court incor-
rectly determined that the trial court had committed
plain error by failing to give the jury an accomplice
credibility instruction regarding Caban’s testimony.
II
We next address the defendant’s claim that the judg-
ment of the Appellate Court, which reversed his convic-
tion of illegal possession of an explosive device and of
manufacturing a bomb, can be affirmed on the alterna-
tive ground that the trial court violated his right against
self-incrimination under article first, § 8, of the Connect-
icut constitution by compelling him to provide a hand-
writing exemplar. We conclude that it is unnecessary
to reach the merits of this claim because, even if we
assume, for the sake of argument, that the state consti-
tution prohibits compulsory handwriting exemplars, we
are not persuaded that that evidence had any effect on
the outcome of the defendant’s trial.
The following additional facts and procedural history
are relevant to our disposition of this claim. Following
the defendant’s arrest, but prior to the commencement
of trial, the trial court granted the state’s motion to
compel the defendant to produce an exemplar of his
handwriting for comparison with handwriting con-
tained both in the notebook found in Caban’s apartment
and with a letter that, according to Caban, the defendant
had sent to her. At trial, the state’s handwriting expert,
James Streeter, testified that the handwriting in the
letter matched that in the notebook. He also testified
that, on the basis of the significant ‘‘variations in the
letter construction,’’ it was his expert opinion that ‘‘the
person [who] authored [the exemplar] was in all proba-
bility attempting to disguise his writing.’’ Thereafter, in
its final charge, the trial court instructed the jury that it
could ‘‘consider the opinion testimony of . . . Streeter
concerning the possibility [that] the defendant may have
been attempting to disguise his handwriting when pro-
viding the [exemplar solely] in conjunction with the
phrase from [the notebook], ‘no guns are to stay in the
house overnight, none at all, even my own,’ as evidence
of consciousness of guilt with regard to the charge of
criminal possession of a firearm.’’ (Emphasis added.)
The jury subsequently returned a verdict of not guilty
on the firearm charge.
On appeal to the Appellate Court, the defendant
claimed that the state had violated his rights under
the Connecticut constitution when it compelled him
to provide a handwriting exemplar.7 State v. Jamison,
supra, 152 Conn. App. 777. Although the defendant con-
ceded ‘‘that such protection is not inherent in the right
against self-incrimination contained in the fifth amend-
ment to the federal constitution,8 he argue[d] that the
Connecticut constitution’s analogous provision affords
greater protection than its federal counterpart.’’ Id., 778.
The Appellate Court rejected the defendant’s claim,
concluding, consistent with fifth amendment jurispru-
dence, that a handwriting exemplar is not testimonial
in nature.9 Id., 778–80.
As we previously indicated, even if it is assumed that
the Appellate Court incorrectly determined that article
first, § 8, is coextensive with the fifth amendment for
present purposes, the defendant makes no attempt to
explain, and we cannot perceive, how Streeter’s testi-
mony concerning the exemplar prejudiced the defen-
dant with respect to the charges that he illegally pos-
sessed an explosive and manufactured a bomb. Indeed,
it is clear that Streeter’s testimony was not prejudicial
even with respect to the firearm charge in view of the
fact that the jury found the defendant not guilty of that
offense. Moreover, it is axiomatic that, in the absence
of any evidence to the contrary, we must presume that
the jury followed the trial court’s instruction that it
could consider Streeter’s testimony only as evidence
of consciousness of guilt with respect to the firearm
charge. See, e.g., State v. O’Neil, 261 Conn. 49, 82, 801
A.2d 730 (2002) (jury is presumed to follow limiting
instructions). Finally, as the state maintains, even with-
out the handwriting exemplar, the state established that
the handwriting in the notebook belonged to the defen-
dant on the basis of Streeter’s testimony that the hand-
writing in the letter matched that in the notebook.
Accordingly, the evidence derived from the handwriting
exemplar was at most additional evidence connecting
the defendant to the apartment, and, as such, it could
not have affected the jury’s verdict on the charges that
the defendant illegally possessed an explosive and man-
ufactured a bomb.
The judgment of the Appellate Court is reversed only
with respect to that court’s reversal of the defendant’s
conviction of the crimes of illegal possession of an
explosive and manufacturing a bomb, and the case is
remanded to that court with direction to affirm the
judgment of the trial court; the judgment of the Appel-
late Court is affirmed in all other respects.
In this opinion the other justices concurred.
1
The defendant also was convicted of illegal possession of a narcotic
substance in violation of General Statutes (Rev. to 1995) § 21a-279 (a). The
defendant’s narcotics conviction is not the subject of this appeal.
2
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3
At trial, the state’s explosives expert, David Bland, described the M-1000
as a hollow cardboard tube filled with gunpowder that is sealed at both
ends, with ‘‘a hobby fuse . . . used as a wick’’ protruding from one end.
Bland further testified that affixing pennies to the M-1000’s exterior creates
‘‘an improvised explosive antipersonnel device’’ that is capable of causing
serious injury upon detonation.
4
The total amount of cocaine found in the apartment was 2.94 grams.
5
Of course, unpreserved claims of constitutional magnitude are reviewed
if the four part test set forth by this court in State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015), is satisfied.
6
The state contends that the defendant has not satisfied this first prong
of the plain error test because it appears that defense counsel may have
decided not to seek an accomplice credibility instruction as a matter of trial
strategy, and that it cannot be said that the court committed any error, let
alone a clear or obvious one, by failing to give an instruction that defense
counsel did not want. See State v. Burke, 182 Conn. 330, 332 n.3, 438 A.2d
93 (1980) (explaining that this court would have rejected defendant’s claim
that trial court committed plain error in failing to instruct jury that, in
accordance with General Statutes § 54-84 [b], no adverse inference could
be drawn from defendant’s failure to testify, if there had been indication that
defense counsel had made strategic decision not to seek that instruction). In
support of this claim, the state argues that defense counsel may not have
requested an accomplice credibility instruction out of concern that it would
undermine any claim that Caban had acted alone. The state also maintains
that defense counsel may not have wanted such an instruction because
some of Caban’s testimony relating to the charges of possession of narcotics
with the intent to sell, which were not dismissed until after the state’s case-
in-chief, was actually helpful to the defendant insofar as Caban testified
that the defendant never stored drugs in or sold drugs out of her apartment.
Even if we accept the state’s characterization of Caban’s testimony as favor-
able to the defendant with respect to those narcotics charges, those charges
were dismissed and, consequently, any reason that the defendant may have
had, based on Caban’s testimony pertaining to those charges, for not
requesting an accomplice credibility instruction would have ceased to exist
at that time. We also disagree with the state’s contention that defense counsel
may have elected not to request the instruction because it might have
suggested to the jury that Caban actually had an accomplice, namely, the
defendant. As we explain more fully hereinafter, the defendant’s primary
claim at trial was that Caban had falsely implicated him with respect to the
charged offenses to avoid being prosecuted for those crimes herself. In light
of that defense strategy, we see no reason why defense counsel would
believe that it would have been advantageous not to have the jury instructed
that it should scrutinize Caban’s testimony closely in view of her obvious
motive to falsely implicate the defendant in the charged offenses.
7
The defendant sought review of his unpreserved claim under State v.
Golding, 213 Conn. 233, 567 A.2d 823 (1989). See State v. Jamison, supra,
152 Conn. App. 778. Under Golding, as currently interpreted by this court,
a defendant can prevail on a claim of constitutional error not preserved at
trial only if all of the following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3) the alleged constitu-
tional violation exists and deprived the defendant of a fair trial; and (4)
if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt. State v. Golding, supra, 239–40; see In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015).
8
The fifth amendment privilege against self-incrimination is applicable
to state prosecutions through the due process clause of the fourteenth
amendment to the United States constitution. Malloy v. Hogan, 378 U.S. 1,
6, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).
9
See, e.g., Gilbert v. California, 388 U.S. 263, 266–67, 87 S. Ct. 1951, 18
L. Ed. 2d 1178 (1967) (‘‘[a] mere handwriting exemplar, in contrast to the
content of what is written . . . is an identifying physical characteristic
outside [of the] protection [of the fifth amendment]’’).