State v. Jamison

• Decision Date: 16 September 2014
• Docket Number: No. 35625.,35625.
• Citation: 152 Conn.App. 753,99 A.3d 1273
• Court: Connecticut Court of Appeals
• Parties: STATE of Connecticut v. Kenneth JAMISON.

152 Conn.App. 753

99 A.3d 1273

STATE of Connecticut

v.Kenneth JAMISON.

No. 35625.

Appellate Court of Connecticut.

Argued May 20, 2014.

Decided Sept. 16, 2014.

John L. Cordani, Jr., New Haven, assigned counsel, for the appellant (defendant).

Matthew A. Weiner, deputy 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 appellee (state).

BEACH, MULLINS and BEAR, Js.

Opinion

BEAR, J.

The defendant, Kenneth Jamison, appeals from the judgment of conviction, rendered after a jury trial, of possession of narcotics in violation of General Statutes § 21a–279 (a), manufacturing a bomb in violation of General Statutes § 53–80a, and possession of an explosive in violation of General Statutes §§ 29–343 and 29–348.¹

On appeal, the defendant claims that (1) the state presented insufficient evidence to support the conviction of manufacturing a bomb, (2) the trial court committed plain error in failing to give an accomplice credibility instruction, (3) his conviction of all three charges violated the constitutional prohibition against double jeopardy, (4) the court failed to adequately instruct the jury on the elements of possession, and (5) the state violated his rights under the Connecticut constitution by compelling him to provide a handwriting exemplar. We agree with the defendant that the court committed plain error in failing to provide an accomplice credibility instruction and reverse the judgment of conviction on that ground only as to the charges of manufacturing a bomb and possession of an explosive. We are not persuaded by the defendant's other claims.

The following facts, which reasonably could have been found by the jury, and procedural history are relevant to the issues on appeal. Maria Caban lived in a third floor apartment in 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 on 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 Miranda² rights. During the search, Caban arrived.

The police searched the premises and found a pair of sneakers that contained a straw and 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 with pennies glued to its exterior, a loaded firearm, an additional small amount of cocaine, 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.

The defendant was arrested and charged with two counts of possession of narcotics with intent to sell, manufacturing a bomb, 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 the notebook found in the apartment. In October, 1996, the defendant was tried before a jury. After the state rested, the defendant moved for a judgment of acquittal on all charges. The court granted the motion with respect to the two counts of possession of narcotics with intent to sell and directed the state to file an amended information charging the defendant with possession of narcotics. The court denied the motion as to all other charges.

The jury found the defendant guilty of possession of narcotics, manufacturing a bomb, and possession of an explosive device, but acquitted the defendant 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, with five years of probation. This appeal followed.

I

First, the defendant claims that the state presented insufficient evidence to support his conviction of manufacturing a bomb in violation of § 53–80a. He argues that gluing pennies onto an existing explosive device does not constitute fabricating a bomb as a matter of law. We are not persuaded.

“Generally, [i]n reviewing a sufficiency of the evidence claim, we apply a two-part test. First, we construe the evidence in the light most favorable to sustaining the verdict. Second, we determine whether upon the facts so construed and the inferences reasonably drawn therefrom the jury reasonably could have concluded that the cumulative force of the evidence established guilt beyond a reasonable doubt.... When, as in the present case, the claim of insufficient evidence turns on the appropriate interpretation of a statute, however, our review is plenary....

“The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case.... When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature.... In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case.... In seeking to determine that meaning ... [General Statutes] § 1–2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.... When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.... We recognize that terms in a statute are to be assigned their ordinary meaning, unless context dictates otherwise....” (Citations omitted; internal quotation marks omitted.) State v. Webster, 308 Conn. 43, 51–52, 60 A.3d 259 (2013).

Section 53–80a provides: “Any person, other than one engaged in the manufacture of firearms or explosives or incendiary devices for lawful purposes, who fabricates, in any manner, any type of an explosive, incendiary or other device designed to be dropped, hurled, or set in place to be exploded by a timing device, shall be guilty of a class B felony.” The defendant does not dispute that the explosive device found by the police is a device the manufacture of which the statute prohibits. Therefore, we are concerned only with whether the defendant's actions in relation to the device constitute “fabricat[ion], in any manner....” General Statutes § 53–80a.

The term “fabricate” is not defined within the statutory scheme. “We thus look to the common understanding of the term as expressed in a dictionary.” (Internal quotation marks omitted.) State v. Webster, supra, 308 Conn. at 53, 60 A.3d 259. Webster's Third New International Dictionary defines “fabricate,” in relevant part, as “to form by art and labor” and “to form into a whole by uniting parts.” Webster's Third New International Dictionary (1993). We also must consider the additional language, “in any manner....” General Statutes § 53–80a. This phrase can only be construed to broaden the range of acts that are prohibited by the statute. See American Promotional Events, Inc. v. Blumenthal, 285 Conn. 192, 203, 937 A.2d 1184 (2008) (“[i]n construing statutes, we presume that there is a purpose behind every sentence, clause, or phrase used in an act and that no part of a statute is superfluous” [internal quotation marks omitted] ).

In the present case, the evidence shows that the defendant glued pennies onto an M–1000 explosive device³ that Caban had purchased with a bag of fireworks. At trial, the state's explosives expert testified that, in his experience, the purpose of gluing pennies to this type of explosive was to create “an improvised explosive antipersonnel device ... to cause serious physical injury to anyone [near where] it detonates....”

Considering the plain and unambiguous text of § 53–80a, we conclude that the defendant's actions are prohibited by the statute.⁴ By uniting parts, the M–1000 explosive device and the pennies, the defendant formed by art and labor an explosive device designed to be dropped, hurled, or set in place to be exploded by a timing device. Given the broad scope of the statute, these actions constitute fabrication. Accordingly, the defendant's claim that the state presented insufficient evidence to support his conviction is unfounded.

II

The defendant next claims that the court erred in failing to give an accomplice credibility instruction regarding the testimony of Caban. The defendant seeks review of this unpreserved claim under the plain error doctrine; Practice Book § 60–5 ; and reversal of the conviction of manufacturing a bomb and possession of an explosive. We agree that the court's failure to provide an accomplice credibility instruction, which was and is a mandatory instruction, was plain error and, accordingly, we reverse the judgment as to the conviction of those charges.

“[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, 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. [T]he plain error doctrine ... is not ......