The opinion
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STATE OF CONNECTICUT v. MONTRELL BROWN
(AC 40553)
DiPentima, C. J., and Elgo and Bear, Js.
Syllabus
Convicted of the crimes of murder and criminal possession of a firearm in
connection with the shooting death of the victim, the defendant
appealed. He claimed, for the first time on appeal, that the trial court
committed plain error by providing inadequate jury instructions regard-
ing eyewitness testimony and identification reliability. Specifically, he
claimed that the trial court, sua sponte, should have provided a jury
instruction concerning the shortcomings and simple misconceptions
about eyewitness testimony, in accordance with certain precedent from
our Supreme Court. Held that the trial court did not commit plain error
by failing to provide, sua sponte, an instruction to the jury concerning
the reliability of eyewitness testmony: the defendant failed to explain
or to demonstrate how the trial court’s alleged error was obvious, readily
discernible or resulted in prejudice, or that any manifest injustice
occurred as a result of the alleged instructional omission where, as here,
a witness was familiar with the defendant and other witnesses had seen
the defendant in the neighborhood prior to the shooting and were certain
about their identifications of him, as the identification of a person who
is well known to the eyewitness generally does not give rise to the same
risk of misidentification as does the identification of a person who is
not well known to the eyewitness, and this case did not involve persons
who were unfamiliar with each other; moreover, this court declined to
exercise its supervisory authority over the administration of justice to
review and reverse the defendant’s conviction, as the defendant failed
to establish a legal requirement for the trial court, in the absence of
any expert testimony or a request from the defendant for such an instruc-
tion, to provide, sua sponte, an additional instruction about eyewitness
testimony reliability, nor did he explain how such an alleged omission
resulted in prejudice to him.
Argued January 12—officially released May 22, 2018
Procedural History
Substitute information charging the defendant with
the crimes of murder and criminal possession of a fire-
arm, brought to the Superior Court in the judicial dis-
trict of Hartford, and tried to the jury before Mullarkey,
J.; verdict of guilty; thereafter, the court rendered judg-
ment in accordance with the verdict, from which the
defendant appealed. Affirmed.
Robert E. Byron, assigned counsel, for the appel-
lant (defendant).
Laurie N. Feldman, special deputy assistant state’s
attorney, with whom, on the brief, were Gail P. Hardy,
state’s attorney, and John F. Fahey, senior assistant
state’s attorney, for the appellee (state).
Opinion
BEAR, J. The defendant, Montrell Brown, appeals
from the judgment of conviction, rendered following a
jury trial, of murder in violation of General Statutes §
53a-54a (a) and criminal possession of a firearm in
violation of General Statutes (Rev. to 2013) § 53a-217
(a) (1). The defendant claims that the trial court erred
by providing inadequate jury instructions regarding eye-
witness testimony and identification reliability,
although his counsel did not make any request for such
an instruction. Because the issue was not raised or
preserved at trial, the defendant requests that this court
reverse his convictions either pursuant to the plain error
doctrine or by the exercise of our inherent supervisory
powers over the administration of justice. We affirm
the judgment of the trial court.
On the basis of the evidence presented at trial, the
jury reasonably could have found the following facts.
Between 1 and 2 a.m. on July 27, 2013, near the intersec-
tion of Albany Avenue and Vine Street in Hartford, a
group of people approached the victim, Edmond John-
son, Jr. This group included two individuals who were
identified later as the defendant and his brother, Trem-
aine Jackson. The victim was shot multiple times and
subsequently died from his injuries. Although spent
shell casings, a bullet projectile, and live rounds were
found near the scene, no gun was recovered.
Three eyewitnesses to the shooting identified the
defendant as the perpetrator. The victim’s mother, Eliz-
abeth Johnson, also identified and placed the defendant
near the location of the shooting shortly after it
occurred.
Elizabeth Johnson testified that around 2 a.m. on July
27, 2013, she was walking to pick the victim up near
the Ave Super Deli store, where he worked. She was
talking to him on her cellphone when she heard gun-
shots. She testified that as she approached the intersec-
tion of Albany Avenue and Burton Street, she saw two
people who ‘‘looked like [the defendant] and his
brother’’ walking past her on the other side of the street.
On cross-examination, she stated that she did not know
the defendant’s name until after she found out what
had happened to the victim.
Valentina Reyes owned the Ave Super Deli store
located at the intersection of Albany Avenue and Vine
Street. She testified, under subpoena, that around 1 a.m.
on July 27, 2013, the victim had injured Jackson with
a knife during an altercation. At some point thereafter,
Jackson went into her store to wash his hands. The
defendant came into the store briefly as well and inter-
acted with Reyes before leaving. She testified that
shortly before the shooting, she was in her car about to
pick up her mother when she witnessed the defendant,
Jackson, and two other individuals approach the victim
on the other side of the street from her store. She
witnessed the defendant, the only person she saw with
a gun, shoot the victim approximately six times. The
following day on July 28, 2013, Reyes submitted a writ-
ten statement to the Hartford Police Department. She
also was given separate photographic arrays from
which she identified the defendant as the shooter and
identified Jackson as being with the defendant when
he shot the victim.1
Christopher Chaney, the victim’s half-brother, testi-
fied that he also witnessed the shooting. He was in the
parking lot of a store at the intersection of Albany
Avenue and Vine Street when he heard and saw two
or three individuals approach the victim. He heard
someone tell the victim to put down a knife and then
saw the defendant shoot the victim five times. Chaney
also identified the defendant from a police photographic
array approximately one month after the shooting.2 Cha-
ney testified that he knew the defendant as ‘‘Wolf’’ but
was not friendly with him. On cross-examination, Cha-
ney admitted that he was under the influence of mari-
juana on the night of the shooting. Detective
Christopher Reeder testified that, approximately one
month after the shooting, he had shown Chaney a photo-
graphic array containing Jackson’s photograph, but
Chaney was unable to identify him.
Lastly, Deneen Johnson also testified that she wit-
nessed the shooting. Immediately prior to the shooting,
she saw the victim walking along the other side of the
street. She saw the victim get into an argument with
two individuals, one with short hair and the other who
was bald. The short-haired individual had a gun and
used it to shoot the victim. Approximately one month
later, Deneen Johnson gave a statement to the police
and identified the defendant and his brother in separate
police photographic arrays.3 She also testified that she
did not know the defendant and the other individual
with him that night, but had seen them around. On cross-
examination, she admitted that she had been drinking
alcohol that night.
Following a jury trial, the defendant was sentenced
to a total of fifty-nine years incarceration with a twenty-
five year mandatory minimum. This appeal followed.
On appeal, the defendant argues that the court com-
mitted plain error by not instructing the jury ‘‘in confor-
mance with the findings and principles [of eyewitness
identification] enunciated in State v. Guilbert, [306
Conn. 218, 49 A.3d 705 (2012)] . . . .’’ It is undisputed
that the defendant’s claim was not raised at trial,
although Guilbert had been decided prior to the trial
in this matter. The defendant requests that this court
review his unpreserved claim under the plain error doc-
trine.4 ‘‘[The plain error] doctrine, codified at Practice
Book § 60-5, is an extraordinary remedy used by appel-
late courts to rectify errors committed at trial that,
although unpreserved, are of such monumental propor-
tion 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, none-
theless 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 confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . .
‘‘An appellate court addressing a claim of plain error
first must determine if the error is indeed plain in the
sense that it is patent [or] readily discernible on the
face of a factually adequate record, [and] also . . .
obvious in the sense of not debatable. . . . This 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.’’ (Emphasis in original; internal quotation
marks omitted.) Reville v. Reville, 312 Conn. 428, 467–
69, 93 A.3d 1076 (2014).
‘‘[Our] Supreme Court has described that second
prong as a stringent standard that will be met only upon
a showing that, as a result of the obvious impropriety,
the defendant has suffered harm so grievous that funda-
mental fairness requires a new trial.’’ (Internal quotation
marks omitted.) State v. Jackson, 178 Conn. App. 16,
21, 173 A.3d 974 (2017), cert. denied, 327 Conn. 998,
176 A.3d 557 (2018).5 Furthermore, ‘‘[t]o prevail on a
claim of nonconstitutional plain error, the defendant
must demonstrate that the trial court’s improper action
likely affected the result of his trial.’’ (Internal quotation
marks omitted.) State v. Ortiz, 71 Conn. App. 865, 872,
804 A.2d 937, cert. denied, 261 Conn. 942, 808 A.2d
1136 (2002).
On appeal, the parties vigorously debate the accuracy
of eyewitness testimony by referencing scholarly arti-
cles and scientific studies. Although we recognize that
in some cases there may be issues regarding eyewitness
testimony and identification reliability as discussed in
State v. Guilbert, supra, 306 Conn. 218, the gravamen
of the defendant’s appeal is that the court erred in its
instructions to the jury by failing to provide, despite
the absence of a request from the defendant’s counsel,
an instruction that conformed ‘‘with what [our Supreme
Court] has ruled about the vicissitudes and shortcom-
ings and simple misconceptions about eyewitness testi-
mony.’’6 It is undisputed, however, that neither party
offered expert testimony at trial concerning these
issues. Nor does the defendant point to, and we have
not found, any statute, rule or case law that mandates
a trial court to provide, sua sponte, such an instruction
to the jury.7
The defendant fails to explain or demonstrate how
the court’s alleged error was obvious or readily discern-
ible. He also does not explain or demonstrate how such
error resulted in prejudice given the facts of this case,
where one witness knew him quite well over a two year
period of time, allowed him to stay in her home, and
interacted with him shortly prior to the shooting, and
the others had previously seen him in the neighborhood
prior to the shooting, and were certain of their identifi-
cations. See, e.g., State v. Faust, 161 Conn. App. 149,
186–88, 127 A.3d 1028 (2015) (defendant failed to estab-
lish prejudice when he argued trial court failed to
instruct jury on lack of correlation between certainty
and accuracy on eyewitness testimony), cert. denied,
320 Conn. 914, 131 A.3d 252 (2016).
Reyes knew the defendant as ‘‘Bush’’ or ‘‘Bully Mon-
ster’’ for a ‘‘long time, maybe two years.’’ The defendant
had previously lived in her home. She had interacted
with the defendant shortly after witnessing the alterca-
tion between the defendant’s brother and the victim,
and she also witnessed the shooting. ‘‘[A]lthough there
are exceptions, identification of a person who is well
known to the eyewitness generally does not give rise
to the same risk of misidentification as does the identifi-
cation of a person who is not well known to the eyewit-
ness.’’ State v. Guilbert, supra, 306 Conn. 259–60.
Chaney recognized the defendant as ‘‘Wolf,’’ but did
not know him personally nor was he friends with him.
Although Deneen Johnson did not know the defendant,
she saw him earlier ‘‘around that night’’ in the neighbor-
hood before the shooting. This was not a case involving
persons who were unfamiliar with each other.
Finally, the defendant did not demonstrate that any
manifest injustice occurred as a result of the alleged
instructional omission.8 Because he has failed to dem-
onstrate either a clear or patent error or that such error
resulted in manifest injustice—requirements for the
invocation of the plain error doctrine—we cannot con-
clude that the court committed plain error by failing to
include, sua sponte, information on eyewitness testi-
mony reliability, as described in Guilbert, in its instruc-
tions to the jury.
Alternatively, the defendant requests that this court
invoke its inherent supervisory authority over the
administration of justice to review and reverse his con-
viction. ‘‘It is well settled that [a]ppellate courts possess
an inherent supervisory authority over the administra-
tion of justice. . . . Supervisory powers are exercised
to direct trial courts to adopt judicial procedures that
will address matters that are of utmost seriousness, not
only for the integrity of a particular trial but also for
the perceived fairness of the judicial system as a whole.’’
(Internal quotation marks omitted.) Kervick v. Silver
Hill Hospital, 309 Conn. 688, 710, 72 A.3d 1044 (2013);
see also State v. Reyes, 325 Conn. 815, 822, 160 A.3d
323 (2017) (‘‘[t]he supervisory authority of this state’s
appellate courts is not intended to serve as a bypass
to the bypass, permitting the review of unpreserved
claims of case specific error—constitutional or not—
that are not otherwise amenable to relief under Golding
or the plain error doctrine’’ [internal quotation marks
omitted]). The defendant has neither established a legal
requirement for the court, in the absence of any expert
testimony or a request from the defendant for such
an instruction, to provide, sua sponte, an additional
instruction about eyewitness testimony reliability as
supposedly described in Guilbert, nor has he explained
how such an alleged omission resulted in prejudice to
him. We thus decline to exercise our inherent supervi-
sory authority in this case.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Attached to each photographic array is a separate ‘‘Hartford Police
Department Witness Instructions Identification Procedures’’ form, which
includes, inter alia, instructions on the identification procedure, date, time,
and signatory sections, and an ‘‘eyewitness statement of confidence’’
section.
Reyes wrote in the statement of confidence section after identifying Jack-
son in the photographic array, stating, ‘‘[one thousand percent] that [Jack-
son], he was the one [the victim] sliced with a box cutter on the hand.
[Jackson] was with [the defendant] when [the defendant] shot [the victim].’’
She additionally wrote in the statement of confidence section, after identi-
fying the defendant in the photographic array, stating, ‘‘I’m [a thousand, one
million percent sure] that [the defendant] is the killer [of the victim].’’
2
Under the statement of confidence section, Chaney wrote ‘‘[t]he man
with the gun’’ and ‘‘100 [percent] sure.’’
3
In the statement of confidence sections after reviewing the photographic
arrays, Deneen Johnson wrote that she was ‘‘100 [percent] sure’’ in identi-
fying the defendant and Jackson.
4
Both parties agree that claims of plain error are not precluded by a
waiver pursuant to State v. Kitchens, 299 Conn. 447, 10 A.3d 942 (2011).
See State v. McClain, 324 Conn. 802, 815, 155 A.3d 209 (2017).
5
The plain error doctrine is an extraordinary remedy. In State v. Jamison,
320 Conn. 589, 600, 134 A.3d 560 (2016), our Supreme Court held: ‘‘[P]rior
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 instruction.
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].’’ (Internal quotation marks omitted.) Id. The defen-
dant has not cited us to any Connecticut appellate case, other than Jamison,
which was reversed by the Supreme Court, where the court found plain
error as a result of a failure to provide a specific eyewitness instruction.
Moreover, this is not a case where the court made no charge to the jury
concerning eyewitness identification. The eyewitness portion of the charge
was comprehensive:
‘‘The state has the burden of proving beyond a reasonable doubt that the
defendant was the perpetrator of the crimes. In this case, they presented
evidence that three eye witnesses identified the defendant in connection
with the crimes charged. Identification is a question of fact for you to decide,
taking into consideration all the evidence that you have seen and heard in
the course of the trial. The identification of the defendant by a single witness
as the one involved in the commission of the crime is, in and itself, sufficient
to justify a conviction of such person, provided, of course, that you are
satisfied beyond a reasonable doubt of the identity of the defendant as the
one who committed the crime or crimes. In arriving at the determination
as to the matter of identification, you should consider all the facts and
circumstances that existed at the time the observation of the perpetrator
by each witness. In this regard, the reliability of each witness is of paramount
importance, since identification testimony is an expression of belief or
impression by the witness. Its value depends upon the opportunity and
ability of the witness to observe the perpetrator at the time of the event
and to make an accurate identification later. It is for you to decide how
much weight to place upon such testimony.
‘‘In appraising the identification of the defendant as the perpetrator by
any witness, you should take into account whether the witness had adequate
opportunity and ability to observe the perpetrator on the date in question.
This will be affected by such considerations as the length of time available
to make the observation; the distance between the witness and the perpetra-
tor; the lighting conditions at the time of the offense; whether the witness
had known or seen the person in the past; the history, if any, between them,
including any degree of animosity; and whether anything distracted the
attention of the witness during the incident. You should also consider the
witness’s physical and emotional condition at the time of the incident and
the witness’s power of observation in general.
‘‘Furthermore, you should consider the length of time that elapsed between
the occurrence of the crime and the identification of the defendant by the
witness. You may also consider the strength of the identification, including
the witness’s degree of certainty. Certainty, however, does not mean accu-
racy. You should also take into account the circumstances under which the
witness first viewed and identified the defendant, the suggestibility, if any,
of the procedure used in that viewing, any physical descriptions that the
witness may have given to the police, and all the other factors which you
find relating to the reliability or lack of reliability of the identification of
the defendant. You may also take into account that an identification made
by picking the defendant out of a group of similar individuals is generally
more reliable than one which results from the presentation of the defendant
alone to the witness. You may also take into account whether the identifica-
tion of the defendant by the witness was a result of photos that were
presented to the witness sequentially, one at a time, or whether the photo-
graphs of all potential suspects were presented to the witness simultane-
ously. The law has recently expressed a preference for sequential
presentation of photographs but that preference is not binding upon you.
Indicating to a witness that a suspect is present in an identification procedure
or failing to warn the witness that the perpetrator may or may not be in
the procedure may increase the likelihood that the witness will select one
of the individuals in the procedure even when the perpetrator is not present.
Thus, such action on the part of the procedure administrator, in other words,
the police officer showing the photograph, may increase the probability of
misidentification. This information is not intended to direct you to give more
or less weight to the eye witness identification evidence offered by the state.
It’s your duty to determine what weight to give to that evidence. You may,
however, take into account this information, as just explained to you, in
making that determination.
‘‘You may consider whether the witness at any time failed to identify
the defendant or made an identification that was inconsistent with the
identification testified to at trial.
‘‘Now you will subject the witness’s testimony by an identification witness
to the same standards of credibility that apply to all witnesses. When
assessing the credibility of the testimony as it relates to the issue of identifica-
tion, keep in mind not sufficient that the witness may be free from doubt
as to the correctness of the identification of the defendant; rather, you must
be satisfied beyond a reasonable doubt of the accuracy of the identification
of the defendant before you may find him guilty on any charge. In short,
you must consider the totality of the circumstances affecting identification.
Remember, the state has the burden to not only prove every element of the
crime, but also the identity of the defendant as the perpetrator of the crime.
You must be satisfied beyond a reasonable doubt of the identity of the
defendant as the one who committed the crime or crimes, or you must find
the defendant not guilty. If you have a reasonable doubt as to the accuracy
of the defendant, you will find the defendant not guilty.’’
Although not addressed by the state, we note that the court’s instruction
on this section is nearly identical to the criminal jury instructions found on
the Judicial Branch website. See Connecticut Criminal Jury Instructions 2.6-
4, available at https://www.jud.ct.gov/JI/Criminal/Criminal.pdf (last visited
May 16, 2018).
6
The defendant does not claim on appeal that any of the witnesses actually
misidentified him. The defendant did not provide to the court for inclusion
in its charge, and has not provided to us, any specific proposed instructions
or language delineating what he asserts was missing from, or is meant
by, ‘‘the vicissitudes and shortcomings and simple misconceptions about
eyewitness testimony’’ that allegedly was not included in the court’s actual
instructions. See footnote 5 of this opinion.
7
Guilbert does not require courts to provide any specific jury instruction
concerning eyewitness identification reliability; rather it permits the admis-
sion of expert testimony to educate jurors about the risks of misidentifica-
tion. State v. Guilbert, supra, 306 Conn. 252; see also State v. Williams, 317
Conn. 691, 703–704, 119 A.3d 1194 (2015); State v. Day, 171 Conn. App. 784,
836 n.16, 158 A.3d 323 (2017).
8
For example, in his argument for plain error, the defendant cites in his
brief a lengthy section of State v. Guilbert, supra, 306 Conn. 234–45, and
conclusorily states, ‘‘[t]hat is the argument for plain error.’’ This provides
an additional reason to affirm the judgment. See, e.g., Connecticut Light &
Power Co. v. Gilmore, 289 Conn. 88, 124–25, 956 A.2d 1145 (2008) (defen-
dant’s claim deemed abandoned through inadequate briefing); In re Shaun
S., 137 Conn. App. 263, 275, 48 A.3d 74 (2012) (claim abandoned because
of respondent’s failure to analyze and brief claim adequately).