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STATE OF CONNECTICUT v. KENNETH JAMISON

(AC 35625)

Beach, Mullins and Bear, Js.

Argued May 20—officially released September 16, 2014

(Appeal from Superior Court, judicial district of

Fairfield, geographical area number two, McKeever, J.)

John L. Cordani, Jr., 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).
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. Priorto 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 considerthe 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. 53. 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 . . . 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 discernable 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

whetherreversal underthe plain error doctrine is appropriate. 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; internal quotation marks omitted.) State v. Sanchez, 308

Conn. 64, 77–78, 60 A.3d 271 (2013).

Applying this test, we first must determine whether

the court’s failure to provide an accomplice credibility

instruction was a patent or readily discernible error. It

is well settled that it is the court’s duty to provide an

instruction regarding the credibility of an accomplice

witness. See State v. Moore, 293 Conn. 781, 823–24, 981

A.2d 1030 (2009) (‘‘Generally, a defendant is not entitled

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 witnesses. . . .

[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.’’ [Emphasis

altered; internal quotation marks omitted.]), cert.

denied, 560 U.S. 954, 130 S. Ct. 3386, 177 L. Ed. 2d 306

(2010). At trial, Caban testified that she had purchased

the M-1000 explosive device and that she and the defendant had acted together to glue pennies onto the device.

Given the nature of this testimony, we conclude that

the court committed a patent and readily discernible

error by failing to provide an instruction regarding her

credibility as an accomplice.

Next, we must consider whether the court’s error is

so clear and harmful that a failure to reverse it would

result in manifest injustice. ‘‘[T]he fact that the instruction . . . was mandated . . . does not, in and of itself,

establish the existence of manifest injustice necessary

for plain error.’’ State v. Sanchez, supra, 308 Conn. 83.

‘‘[B]ecause an instructional error relating to general

principles of witness credibility is not constitutional in

nature . . . the defendant bears the burden of establishing that the error deprived him of his due process

right to a fair trial.’’ (Internal quotation marks omitted.)

State v. Moore, supra, 293 Conn. 824. Our Supreme

Court has identified fourfactors for consideration when

determining whether the trial court’s failure to give a

cautionary instruction deprived the defendant of a fair

trial: ‘‘whether (1) the accomplice testimony was corroborated 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 witnesses might have an interest in coloring their testimony.’’ Id., 825.

Applying these factors to the present case, we conclude that the first factor, which is whether the accomplice testimony was corroborated by substantial

independent evidence of guilt, favors the defendant.

Caban’s testimony was the sole evidence presented that

tied the defendant to the explosive device found in

Caban’s apartment.

The second factor, which is whether the accomplice

testimony was consistent, also favors the defendant, as

Caban provided inconsistent testimony about the gun

found in her apartment. On direct examination, she

indicated that the gun belonged to the defendant, but

later, on cross-examination, stated that it belonged to

another person.

The third factor, which is whether the accomplice’s

potential motives for falsifying her testimony were

brought to the jury’s attention, favors the state. The

state and the defendant stipulated that Caban previously had been charged in connection with the explosive device found in her apartment and that the charges

had been dropped. This stipulation brought her potential motives for falsifying her testimony to the jury’s

attention. Furthermore, during closing argument,

defense counsel suggested that Caban had agreed to

testify against the defendant in order to avoid being

charged with a crime herself.

Finally, the fourth factor, which is whetherthe court’s

instructions to the jury suggested that the witness might

have an interest in coloring her testimony, favors the

defendant. The court gave only a basic instruction as

to witness credibility, asking the jury to consider the

character of the testimony, the demeanor of the witness

as it bears on credibility, the substance of the testimony

and the probability or improbability that what the witness said was true. The court did not instruct the jury

to consider potential biases when considering the credibility of witnesses in general or Caban specifically.

Thus, there was no suggestion made by the court that

Caban might have had an interest in coloring her testimony. See id., 826–27 (court’s general instruction to

consider biases of witnesses in weighing credibility did

not suggest to jury that accomplice witnesses might

have had interest in coloring testimony). We conclude

that these four factors, when considered together,

weigh in favor of the defendant.

This court recently considered a claim of plain error

for failure to provide an accomplice credibility instruction in State v. Miller, 150 Conn. App. 667, 92 A.3d 986,

cert. denied, 312 Conn. 926, A.3d (2014). In that

case, we held that the court’s failure to provide the
mandatory accomplice instruction did notrequire reversal pursuant to the plain error doctrine because our

failure to reverse would not result in manifest injustice.

Id., 681–82. That case, however, is distinguishable from

the present case in that in Miller, the trial court gave a

credibility instruction that directed the jury to consider

whether any witness had any interest in the outcome

of the case or any bias or prejudice concerning any

party or any matter involved in the case. Id., 681. The

trial court also specifically instructed the jury that it

had to consider whether the witnesses in the case had

any interest in its outcome or any bias or prejudice as

to any party or matter involved in the case, and the

court further instructed that the jury could use the prior

criminal history of the defendant’s coconspirator and

accomplice in assessing her credibility. Neither of these

safeguards was in place in the present case, as the court

gave no instruction as to bias and did not specifically

instruct the jury in any way as to Caban’s testimony.

Our Supreme Court recently addressed the issue of

a court’s failure to provide an accomplice credibility

instruction as plain error in State v. Moore, supra, 293

Conn. 781, holding that the lack of such an instruction

did not require reversal because its failure to reverse

would not result in manifest injustice. Id., 829. Moore

is also distinguishable from the present case, as there

was substantial evidence presented by the state at trial

corroborating the accomplices’ testimony, and the testimony of two of the relevant witnesses was consistent

as to the defendant’s role in the charged crime. Id.,

825–26. In the present case, no evidence besides

Caban’s testimony tied the defendant to the explosive

device, and an inconsistency in her testimony was identified during cross-examination.

Considering all of the factors, we are persuaded that

the lack of the mandatory accomplice credibility

instruction in the present case jeopardized the fairness

of the defendant’s trial to a degree significantly greater

than in Miller and Moore and, therefore, we conclude

that manifest injustice would result without a reversal

of the defendant’s conviction of manufacturing a bomb

and possession of an explosive.5

In summary, the court’s failure to provide an accomplice credibility instruction was plain and readily discernible error. The court’s failure to do so deprived the

defendant of a fair trial and, therefore, our failure to

reverse the defendant’s conviction of manufacturing a

bomb and possession of an explosive after recognition

of this error would result in manifest injustice. The two

prongs of the plain error doctrine are therefore satisfied

in this case and reversal of the conviction on the charges

in question is required.

III

Next, the defendant claims that his conviction of all
three charges violated the constitutional prohibition

against double jeopardy on two grounds.6 First, he

claims that the charges brought against him for possession of an explosive and manufacturing a bomb arose

out of the same act or transaction and represented

the same offense for the purposes of double jeopardy

analysis. Second, he claims that his conviction of possession of narcotics following his acquittal of possession of narcotics with intent to sell amounted to two

prosecutions for the same offense. The defendant seeks

review of these unpreserved claims pursuant to State

v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).7

We begin by setting forth the standard of review

and governing legal principles. ‘‘A defendant’s double

jeopardy claim presents a question of law, over which

our review is plenary. . . . The double jeopardy clause

of the fifth amendment to the United States constitution

provides: [N]or shall any person be subject for the same

offense to be twice put in jeopardy of life or limb. The

double jeopardy clause [applies] to the states through

the due process clause of the fourteenth amendment.

. . . This constitutional guarantee prohibits not only

multiple trials for the same offense, but also multiple

punishments for the same offense in a single trial. . . .

Although the Connecticut constitution does not include

a double jeopardy provision, the due process guarantee

of article first, § 9, of our state constitution encompasses protection against double jeopardy.’’ (Citation

omitted; internal quotation marks omitted.) State v. Bernacki, 307 Conn. 1, 9, 52 A.3d 605 (2012), cert. denied,

U.S. , 133 S. Ct. 1804, 185 L. Ed. 2d 811 (2013).

A

The defendant first claims that his conviction of possession of an explosive and manufacturing a bomb violated the constitutional prohibition against double

jeopardy. He argues that the two charges arise out of

the same act or transaction and represent the same

offense for the purposes of double jeopardy analysis.8

Although the claim is reviewable, as the record is adequate for review and the claim is of constitutional magnitude, we are not persuaded that possession of an

explosive and manufacturing a bomb are the same

offense under our test and, therefore, we conclude that

the claim fails under the third prong of Golding.

‘‘Double jeopardy analysis in the context of a single

trial is a two-step process. First, the charges must arise

out of the same act or transaction. Second, it must be

determined whether the charged crimes are the same

offense. Multiple punishments are forbidden only if

both conditions are met. . . . Traditionally we have

applied the Blockburger test to determine whether two

statutes criminalize the same offense, thus placing a

defendant prosecuted under both statutes in double

jeopardy: [W]here the same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are

two offenses or only one, is whether each provision

requires proof of a fact which the other does not.

Blockburger v. United States [284 U.S. 299, 52 S. Ct.

180, 76 L. Ed. 306 (1932)]. This test is a technical one

and examines only the statutes, charging instruments,

and bill of particulars as opposed to the evidence presented at trial.’’ (Internal quotation marks omitted.)

State v. Bernacki, supra, 307 Conn. 9.

Here, the defendant was charged with possession of

an explosive in violation of §§ 29-3439 and 29-348,10 and

manufacturing a bomb in violation of § 53-80a.11 The

statutory elements of possession of an explosive are

(1) possession (2) of an explosive as defined by the

statutory definition. The statutory elements of manufacturing a bomb are (1) fabricating, in any manner, (2)

any type of explosive, incendiary or other device, (3)

designed to be dropped, hurled, or set in place to be

exploded by a timing device.

Our task is to determine whether conviction of each

crime requires proof of a fact that the other does not.

Considering the statutory language, it is apparent that

both crimes require proof of a fact that the other does

not. In order for a person to be convicted of possession

of an explosive, the state must prove that such person

possessed the explosive. Such proof is not necessary

to support a conviction of manufacturing a bomb.12 In

order for a person to be convicted of manufacturing a

bomb, the state must prove that the person fabricated

the bomb. Fabrication is not an element of the crime

of possession of an explosive. Accordingly, possession

of an explosive and manufacturing a bomb are not the

same offense under the applicable test, and the defendant’s claim fails under the third prong of Golding.

B

Next, the defendant claims that his conviction of possession of narcotics following his acquittal of possession of narcotics with intent to sell violated the

constitutional prohibition against double jeopardy. He

argues that he faced two prosecutions for the same

offense when the court allowed the state to add a charge

of possession of narcotics to its information after granting his motion for a judgment of acquittal of possession

of narcotics with intent to sell. Although the claim is

reviewable, as the record is adequate for review and

the claim is of constitutional magnitude, we are not

persuaded that the defendant was prosecuted a second

time and, therefore, the claim fails underthe third prong

of Golding.

As set forth previously, our review of a defendant’s

double jeopardy claim is plenary. In addition to protecting against the imposition of multiple punishments

for the same offense, the double jeopardy clause of the

United States constitution ‘‘protects against a second
prosecution for the same offense after acquittal.’’ State

v. Hedge, 297 Conn. 621, 666, 1 A.3d 1051 (2010). In

order for this type of protection to be implicated, a

defendant must,(1) for the same offense (2) as to which

he was previously acquitted, (3) be prosecuted a second time.

In the present case, the defendant initially was

charged with possession of narcotics with intent to sell.

After the state rested, the court granted the defendant’s

motion for a judgment of acquittal on that charge and

directed the state to file an amended information that

included a charge of possession of narcotics. The state

filed the new information the following day. The state

did not seek to open its case in order to present additional evidence or testimony. Following closing arguments and jury instructions, the jury found the

defendant guilty of possession of narcotics.

First, we must determine whether the crimes at issue

constitute the same offense for the purposes of double

jeopardy. As set forth previously, whether a charged

crime constitutes the ‘‘same offense’’ as another for the

purposes of double jeopardy is analyzed on the basis

of the principles espoused in Blockburger v. United

States, supra, 284 U.S. 299. Under this test, any lesser

included offense constitutes the ‘‘same offense’’ as its

greater offense for the purposes of double jeopardy

analysis. Brown v. Ohio, 432 U.S. 161, 167–68, 97 S. Ct.

2221, 53 L. Ed. 2d 187 (1977).

Here, it is undisputed that, as a lesser included

offense, possession of narcotics represents the same

offense as possession of narcotics with intent to sell

for the purposes of double jeopardy. See State v.

Polanco, 308 Conn. 242, 244, 61 A.3d 1084 (2013). Therefore, the charge included in the amended information

was the ‘‘same offense’’ as that ruled upon in the motion

for a judgment of acquittal.

Next, we consider whether the defendant was acquitted of the charge of possession with intent to sell for

double jeopardy purposes. Double jeopardy protection

applies equally to acquittals rendered by a jury or by

a judge in ruling on a motion for acquittal. Smith v.

Massachusetts, 543 U.S. 462, 467–68, 125 S. Ct. 1129,

160 L. Ed. 2d 914 (2005). ‘‘[A]n acquittal . . . encompass[es] any ruling that the prosecution’s proof is insufficient to establish criminal liability for an offense,’’

including a judgment of acquittal during a jury trial.

Evans v. Michigan, U.S. , 133 S. Ct. 1069, 1074–

75, 185 L. Ed. 2d 124 (2013); see also Smith v. Massachusetts, supra, 467–68.

Here, the defendant was acquitted of the charges of

possession of narcotics with intent to sell when the

judge granted his motion for a judgment of acquittal.13

See Evans v. Michigan, supra, 133 S. Ct. 1069 (‘‘[I]t is

plain that the [trial court] . . . evaluated the [State’s]
evidence and determined that it was legally insufficient

to sustain a conviction. . . . This ruling was not a dismissal on a procedural ground unrelated to factual guilt

or innocence . . . but rather a determination that the

State had failed to prove its case.’’ [Citations omitted;

internal quotation marks omitted.]); see also State v.

Kruelski, 250 Conn. 1, 7, 737 A.2d 377 (1999) (‘‘[w]here

the court, before the jury returns a verdict, enters a

judgment of acquittal . . . [retrial] will be barred . . .

when it is plain that the [trial court] . . . evaluated

the Government’s evidence and determined that it was

legally insufficient to sustain a conviction’’ [internal

quotation marks omitted]), cert. denied, 528 U.S. 1168,

120 S. Ct. 1190, 145 L. Ed. 2d 1095 (2000).

Finally, we must determine whether the defendant

faced a second prosecution. ‘‘[S]ubjecting [a] defendant

to postacquittal factfinding proceedings going to guilt

or innocence violates the Double Jeopardy Clause.’’

(Internal quotation marks omitted.) Smith v. Massachusetts, supra, 543 U.S. 467. The clause is not violated

when a defendant is not exposed to trial or trial-like

proceedings, even when the result is a reversal of the

acquittal. Id. (‘‘[w]hen a jury returns a verdict of guilty

and a trial judge [or an appellate court] sets aside that

verdict and enters a judgment of acquittal, the Double

Jeopardy Clause does not preclude a prosecution

appeal to reinstate the jury verdict of guilty’’). Reversal

is permissible under these circumstances because

‘‘[c]orrection of an error of law at that stage [does] not

grant the prosecutor a new trial or subject the defendant

to the harassment traditionally associated with multiple

prosecutions.’’ United States v. Wilson, 420 U.S. 332,

352, 95 S. Ct. 1013, 43 L. Ed. 2d 232 (1975).

Here, the defendant was not subjected to postacquittal fact-finding proceedings going to his guilt or innocence on the charge of possession of narcotics. No

additional witnesses or testimony were presented.

Rather, the conviction was based solely on the case

made by the state on the original information charging

possession with intent to sell. From the court’s actions

and its instruction to the state to file an amended information charging only possession, it is clear that the

court found that the state had failed to prove the intent

to sell element of the charge of possession with intent

to sell. There was no harassment of the defendant, as

the trial continued on the same schedule as it would

have without the filing of the amended information.

Under these circumstances, we cannot conclude that

the defendant was prosecuted twice. Accordingly, the

defendant’s double jeopardy claim fails under the third

prong of Golding.

IV

Next, the defendant claims that the court failed to

adequately instruct the jury on the elements of possession of narcotics.14 Specifically, he argues that the
court’s instructions (1) conflated two elements of possession—knowledge of the contraband’s presence and

knowledge of the contraband’s character—and (2) erroneously informed the jury that it could infer those elements from his possession of the contraband. The

defendant seeks review of this unpreserved claim pursuant to State v. Golding, supra, 213 Conn. 239–40.

Although the claim is reviewable, as the record is adequate for review and the claim is of constitutional magnitude; see State v. Boyd, 115 Conn. App. 556, 562,

973 A.2d 138 (constitutionally axiomatic that jury be

instructed on essential elements of crime charged), cert.

denied, 293 Conn. 912, 978 A.2d 1110 (2009); we are

not persuaded that the instructions were inadequate

and, therefore, we conclude that the claim fails under

the third prong of Golding.

‘‘Our standard of review with regard to claims of

instructional error is well established. [I]ndividual jury

instructions should not be judged in artificial isolation,

but must be viewed in the context of the overall charge.

. . . The pertinent test is whether the charge, read in

its entirety, fairly presents the case to the jury in such

a way that injustice is not done to either party under

the established rules of law. . . . Thus, [t]he whole

charge must be considered from the standpoint of its

effect on the [jurors] in guiding them to the proper

verdict . . . and not critically dissected in a microscopic search for possible error. . . . Where . . . the

challenged jury instructions involve a constitutional

right, the applicable standard ofreview is whetherthere

is a reasonable possibility that the jury was misled in

reaching its verdict.’’ (Citation omitted; internal quotation marks omitted.) Id., 562–63.

‘‘When, as here, a defendant is charged with possession of narcotics . . . and the contraband is not found

on his person, the state must proceed on the theory

of constructive possession, that is, possession without

direct physical contact. . . . To prove . . . constructive possession of a narcotic substance, the state must

establish beyond a reasonable doubt that the accused

knew of the character of the drug and its presence, and

exercised dominion and control over it. . . . In our

criminal statutes concerning possession, control of the

object must be exercised intentionally. . . . That

intent may be proved by circumstantial evidence.’’

(Citations omitted; internal quotation marks omitted.)

State v. Fasano, 88 Conn. App. 17, 25, 868 A.2d 79, cert.

denied, 274 Conn. 904, 876 A.2d 15 (2005), cert. denied,

546 U.S. 1101, 126 S. Ct. 1037, 163 L. Ed. 2d 873 (2006).

‘‘Where the defendant is not in exclusive possession of

the premises where the narcotics are found, it may not

be inferred that [the defendant] knew of the presence

of the narcotics and had control of them, unless there

are other incriminating statements or circumstances

tending to buttress such an inference.’’ (Internal quotation marks omitted.) State v. Martin, 285 Conn. 135,
150, 939 A.2d 524, cert. denied, 555 U.S. 859, 129 S. Ct.

133, 172 L. Ed. 2d 101 (2008).

In the present case, the trial court instructed the jury

with regard to the possession element of the narcotics

charge as follows: ‘‘For you to find the defendant guilty

of [possession of narcotics], the state must prove

beyond a reasonable doubt that the defendant knowingly possessed or had under his control a narcotic

substance. An element of the offense of possession of

narcotics is that the accused knowingly possessed a

narcotic substance. An act is done knowingly if it is

done voluntarily and purposely. Knowledge may be

inferred from possession. In other words, if you find

possession proved beyond a reasonable doubt, you can

logically and reasonably infer that the defendant had

knowledge that he possessed the subject item. Knowledge can also be inferred from all of the facts, circumstances and evidence in the case.

‘‘Possession, as used in criminal statutes, ordinarily

signifies intentional control of a designated thing

accompanied by knowledge of its character. The

accused will be guilty of a violation of this statute if,

in fact, he did possess cocaine, which . . . as I have

instructed you, is a narcotic substance. The word possession, as used in the law, has no technical meaning.

It does not mean that one must have a narcotic substance on his person. That, however, is one form of

possession. It does mean having something under one’s

control or dominion, as you speak ordinarily of things.

We possess a thing when we have it under our immediate control or dominion. You possess the articles on

your person because obviously they are within your

immediate control or dominion. I possess the records

on the bench before me, and it’s obvious that they are

obviously within my immediate control or possession.

I also possess the briefcase, which happens to be in

my chambers, because it’s under my control. I possess

the furniture and other items in my home, even though

I am not actually there now, for the same reason.’’

Considering the defendant’s first argument, which is

that the court’s instructions conflated the elements of

knowledge of the drug’s presence and knowledge of

the drug’s character, we deem it meritless. On the contrary, the court expressly distinguished between those

two elements in instructing the jury that possession

‘‘ordinarily signifies intentional control of a designated

thing accompanied by knowledge of its character.’’

(Emphasis added.)

We are equally unconvinced by the defendant’s argument that the court’s instruction to the jury that it could

infer knowledge of the drug’s presence and character

from his possession of the drug was improper. Although

our Supreme Court has clearly stated that it is improper

to infer that an accused has knowledge of contraband’s

presence or character on the basis of his or her nonex-
clusive possession of the premises in which the contraband is found; see State v. Martin, supra, 285 Conn.

150; the defendant has not identified any authority suggesting that it is improper to infer that an accused has

such knowledge on the basis of his or her possession

of the contraband itself. If a jury is convinced that an

accused has control and dominion over certain contraband even though it was found in premises not in the

accused’s exclusive possession, it is indeed reasonable

to infer that the accused is aware of the presence and

character of that contraband. Accordingly, there was

no flaw in the court’s instructions regarding the defendant’s possession of narcotics.

V

Finally, the defendant claims that the state violated

his rights underthe Connecticut constitution in compelling him to provide a handwriting exemplar. Although

he acknowledges that such protection is not inherent

in the right against self-incrimination contained in the

fifth amendment to the federal constitution, he argues

that the Connecticut constitution’s analogous provision

affords greater protection than its federal counterpart.

The defendant seeks review of this unpreserved claim

pursuant to State v. Golding, supra, 213 Conn. 239–40.

We assume for purposes of analyzing the defendant’s

argument that he has satisfied the second prong of

Golding; but see State v. Evans, 44 Conn. App. 307,

321, 689 A.2d 494 (claim that compelling defendant to

display teeth violated article first, § 8, of Connecticut

constitution was not of constitutional magnitude and

this did not satisfy second prong of Golding), cert.

denied, 240 Conn. 924, 692 A.2d 819 (1997). Even assuming that the claim is reviewable, the record is adequate

for review and the claim is of constitutional magnitude,

we are not persuaded that a clear constitutional violation occurred and, therefore, the claim fails under the

third prong of Golding.

The fifth amendmentto the United States constitution

provides in relevant part that ‘‘[n]o person . . . shall be

compelled in any criminal case to be a witness against

himself’’; U.S. Const., amend. V; whereas the Connecticut constitution provides in relevant part that ‘‘[n]o

person shall be compelled to give evidence against himself . . . .’’ Conn. Const., art. I, § 8. Despite this textual

divergence, our Supreme Court has concluded that

‘‘there is really, in spirit and in principle, no distinction

arising out of such difference of language.’’ State v.

Asherman, 193 Conn. 695, 714, 478 A.2d 227 (1984) (‘‘if

there is a constitutional distinction to be drawn in selfincrimination cases between giving testimony and giving evidence, our cases have not reflected it’’), cert.

denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814

(1985). In accordance with this analysis, our courts

consistently have declined to construe the Connecticut

provision more broadly than the right provided by the
federal constitution. State v. Lockhart, 298 Conn. 537,

552, 4 A.3d 1176 (2010); State v. Castonguay, 218 Conn.

486, 495–96, 590 A.2d 901 (1991).

The United States Supreme Court has considered

whether the federal constitution prohibits compulsory

handwriting exemplars and held that this type of evidence does not fall within the scope of the fifth amendment’s protection because it is nontestimonial in nature.

Gilbert v. California, 388 U.S. 263, 266–67, 87 S. Ct.

1951, 18 L. Ed. 2d 1178 (1967). Although Connecticut

appellate courts have not addressed whether the state

constitution acts to prohibit the compelled production

of handwriting exemplars specifically, this court and

our Supreme Court have uniformly determined that,

like its federal counterpart, article first, § 8, of our state

constitution applies only to testimonial evidence. See

State v. Asherman, supra, 193 Conn. 715 (compelling

defendant to submit to providing dental impression did

not violate article first, § 8); State v. Evans, supra, 44

Conn. App. 321 (compelling defendant to display teeth

did not violate article first, § 8); State v. Campfield,

44 Conn. App. 6, 17, 687 A.2d 903 (1996) (compelling

defendant to submit to atomic absorption test did not

violate article first, § 8), cert. denied, 240 Conn. 916,

692 A.2d 814, cert. denied, 522 U.S. 823, 118 S. Ct. 81,

139 L. Ed. 2d 39 (1997).

In the present case, the defendant was ordered to

provide a handwriting exemplar for comparison with

the notebook found in Caban’s apartment. A handwriting exemplar is a clear example of ‘‘nontestimonial’’

evidence, a fact that the defendant does not dispute.15

See Gilbert v. California, supra, 388 U.S. 263 (‘‘[n]o

claim is made that the content of the exemplars was

testimonial or communicative matter’’). As such, it falls

outside of any constitutional protection.16 Accordingly,

the defendant’s claim relying on the Connecticut constitution fails under the third prong of Golding.

The judgment is reversed only as to the conviction

of manufacturing a bomb and possession of an explosive and the case is remanded for a new trial on those

charges. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

1 The defendant was convicted in 1996. His subsequent appeal was dismissed by this court for not being filed in a timely manner. In 2013, as a

result of a stipulated judgment in a habeas corpus action brought by the

defendant, the defendant’s appellate rights were restored, resulting in the

present appeal.

2 See Miranda v. Arizona, 384 U.S. 436, 478–79, 86 S. Ct. 1602, 16 L. Ed.

2d 694 (1966).

3 At trial, the state’s explosives expert described the M-1000 as ‘‘a hollow

cardboard tube . . . filled with a[n] [explosive] powder . . . .’’ On one end

of the device is ‘‘a hobby fuse . . . used as a wick.’’

4 Because we consider the language of § 53-80a to be plain and unambiguous, the rule of lenity, as raised by the defendant in this appeal, does not

apply to our analysis. See State v. Lutters, 270 Conn. 198, 219, 853 A.2d 434

(2004) (‘‘[T]he touchstone of [the] rule of lenity is statutory ambiguity. . . .

Thus . . . courts do not apply the rule of lenity unless a reasonable doubt

persists about a statute’s intended scope even after resort to the language
and structure, legislative history, and motivating policies of the statute.’’

[Citation omitted; emphasis in original; internal quotation marks omitted.]).

5 The requirement that the court give an accomplice credibility instruction

has existed for decades. In State v. Brown, 187 Conn. 602, 612–13, 447 A.2d

734 (1982), our Supreme Court explained that ‘‘[i]t is well established that

‘where warranted by the evidence, it is the court’s duty to caution the jury

as to the testimony of an accomplice in its charge.’ . . . State v. Ferrara,

176 Conn. 508, 511, 408 A.2d 265 (1979); see Bruton v. United States, 391

U.S. 123, 136, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968); State v. Estep, 186

Conn. 648, 652, 443 A.2d 483 (1982); State v. Ruth, [181 Conn. 187, 196–97,

435 A.2d 3 (1980)]; State v. Colton, 174 Conn. 135, 140, 384 A.2d 343 (1977);

State v. Carey, 76 Conn. 342, 349, 56 A. 632 (1904). ‘The conditions of

character and interest most inconsistent with a credible witness, very frequently, but not always, attend an accomplice when he [or she] testifies.

When those conditions exist, it is the duty of the judge to specially caution

the jury . . . .’ State v. Carey, [supra, 349]. In this case, because of [the

witness’] status as a self-confessed accomplice in the crimes for which the

defendant was being tried and her possible interest in favorable treatment,

the evidence warranted the giving of the cautionary accomplice instruction.

See State v. Ruth, [supra, 196–97].’’ (Emphasis in original.)

6 We address the merits of the defendant’s remaining claims because they

relate to the conviction of possession of narcotics or are likely to arise on

retrial. See State v. T.R.D., 286 Conn. 191, 195, 942 A.2d 1000 (2008).

7 We will review an unpreserved claim when ‘‘(1) the record is adequate to

review the alleged claim of error; (2) the claim is of constitutional magnitude

alleging the violation of a fundamental right; (3) the alleged constitutional

violation clearly exists and clearly 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. In the absence of any one of these conditions, the defendant’s claim

will fail.’’ (Footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.

8 The defendant argues that the state is judicially estopped from arguing

on appeal that manufacturing a bomb is not the same offense as possession

of explosives because, when explaining the contents of a substitute information, the prosecutor told the court that ‘‘[t]he new charges now, the third

count, manufacturing a bomb, basically, Your Honor, is the same offense,

pretty much the same elements as the fourth count, [possession of an

explosive device] . . . .’’

‘‘Typically, judicial estoppel will apply if: 1) a party’s later position is

clearly inconsistent with its earlier position; 2) the party’s former position

has been adopted in some way by the court in the earlier proceeding; and

3) the party asserting the two positions would derive an unfair advantage

against the party seeking estoppel. . . . We further limit judicial estoppel

to situations where the risk of inconsistent results with its impact on judicial

integrity is certain. . . . Thus, courts generally will not apply the doctrine

if the first statement or omission was the result of a good faith mistake

. . . or an unintentional error.’’ (Internal quotation marks omitted.) Dougan

v. Dougan, 301 Conn. 361, 372–73, 21 A.3d 791 (2011).

In the present case, the state was not advancing a legal argument that

possession of explosives and manufacturing a bomb are the same offense,

but merely explaining the substance of the additional charge added to the

information. As such, judicial estoppel is not applicable in this case.

9 General Statutes § 29-343 provides in relevant part: ‘‘Explosive . . .

means any chemical compound or any mechanical mixture that contains

oxidizing and combustible units or other ingredients in such proportions,

quantities or packing that ignition by fire, friction, concussion, percussion

or detonator may cause such a sudden generation of highly heated gases

that the resultant gaseous pressure is capable of destroying life or limb or

of producing destructive effects to contiguous objects . . . .’’

10 General Statutes § 29-348 provides: ‘‘Any person, having in his possession any explosive for which he has not a bill of sale or who cannot produce

legal evidence showing that he obtained such explosive by a legal transfer,

shall be fined not more than ten thousand dollars or imprisoned not more

than ten years or both for each offense.’’

11 General Statutes § 53-80a provides in relevant part: ‘‘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.’’
12 The defendant argues that one cannot fabricate an explosive device

without first possessing an explosive and therefore possession is an element

of manufacturing a bomb. In support, he cites cases from other jurisdictions,

but fails to identify any Connecticut case for this proposition. All but one

of these cases concern possession and manufacture of narcotics, not explosives or an explosive device, and are plainly distinguishable. The remaining

case, United States v. Buchanan, 830 F.2d 146, 147 (10th Cir. 1987), concerns

a defendant who was convicted of both manufacture and possession of an

explosive device under a single statute. That case is also distinguishable

from the present case, where the defendant was convicted undertwo distinct

statutes, each with a different purpose and different elements. Accordingly,

we do not find the cases cited by the defendant to be on point. Further,

§ 53-80a does not contain any reference to possession as an element of the

offense of manufacturing a bomb.

13 There is no dispute that jeopardy first attached prior to the acquittal,

as the jury had been empaneled and sworn. See State v. Jimenez-Jaramill,

134 Conn. App. 346, 375 n.18, 38 A.3d 239 (‘‘[i]n jury trials, jeopardy attaches

when a jury is empaneled and sworn’’), cert. denied, 305 Conn. 913, 45 A.3d

100 (2012).

14 As we reverse the defendant’s conviction of possession of an explosive,

we limit our review of the court’s instructions on possession to those concerning the charge of possession of narcotics.

15 The defendant argues that handwriting exemplars should be treated

differently than other forms of nontestimonial evidence under the Connecticut constitution’s self-incrimination clause because compelling a defendant

to submit this type of evidence subjects a person accused of a crime to the

‘‘cruel trilemma’’ of self-accusation, perjury, or contempt. See State v.

Steiger, 218 Conn. 349, 365 n.16, 590 A.2d 408 (1991). In interpreting this

clause, our courts draw a line between testimonial evidence, falling within

the clause’s protection, and nontestimonial evidence, falling without. The

defendant provides no authority for the proposition that the line be redrawn

in the manner sought.

16 The defendant asks that we break from our Supreme Court’s precedent

and hold that the Connecticut constitution’s self-incrimination clause provides broader protection than the fifth amendment to the federal constitution

in that it applies to nontestimonial evidence. ‘‘It is axiomatic that the trial

court and this court are without authority to overrule the decisions of our

Supreme Court. In the absence of direction by our Supreme Court, inferior

courts must continue to adhere to its decisions.’’ West Hartford v. Murtha

Cullina, LLP, 85 Conn. App. 15, 24, 857 A.2d 354, cert. denied, 272 Conn.

907, 863 A.2d 700 (2004). Accordingly, we cannot be persuaded by the

defendant’s argument.