State v. Blaine , 168 Conn. App. 505 ( 2016 )

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STATE OF CONNECTICUT v. JAYEVON BLAINE
(AC 36832)
Beach, Sheldon and Prescott, Js.
Argued January 19—officially released September 27, 2016
(Appeal from Superior Court, judicial district of
Fairfield, Kahn, J.)
Katherine C. Essington, assigned counsel, for the
appellant (defendant).
Adam E. Mattei, assistant state’s attorney, with
whom, on the brief, were John C. Smriga, state’s attor-
ney, and Howard S. Stein, senior assistant state’s attor-
ney, for the appellee (state).
Opinion
BEACH, J. The defendant, Jayevon Blaine, appeals
from the judgment of conviction, rendered after a jury
trial, of conspiracy to commit robbery in the first degree
in violation of General Statutes §§ 53a-48 and 53a-134
(a) (2).1 On appeal, the defendant claims that (1) the
evidence was insufficient to sustain his conviction; (2)
the trial court erred in denying his request for a jury
instruction on third party culpability; and (3) the court
incorrectly instructed the jury on the requisite intent
to find him guilty of conspiracy to commit robbery in the
first degree. We affirm the judgment of the trial court.
Evidence supporting the following facts was pre-
sented to the jury. On September 6, 2009, at approxi-
mately 9:35 p.m., Bridgeport police Officer Paul Scillia
was dispatched to Bretton Street in Bridgeport to
respond to reports of gunshots and a suspicious vehicle.
Upon arrival, he observed the victim, later identified as
Kevin Soler, lying in the backseat of a vehicle, with his
legs hanging out of an open door. Scillia checked the
victim for a pulse and determined that he was deceased.
He radioed for backup.
Soon after the other officers arrived at the scene,
Scillia and the other officers were approached by Pris-
cilla LaBoy. She was crying hysterically. LaBoy told
Scillia that the deceased person in the car was her
boyfriend. She told Scillia that the victim had picked
her up earlier in the day and that they met a friend of
his.2 The three drove to a designated location where
they parked and waited for another person. After they
waited there for a couple of minutes, a black male,
approximately six feet tall and wearing a black hoodie,
approached their vehicle from across the street. The
victim exited his vehicle and met the other man in
the middle of the street. LaBoy overheard Soler, who
sounded anxious, tell the other man that they had met
each other at the other man’s ‘‘baby mama’s party.’’
LaBoy told Scillia that the other man then shot her boy-
friend.
Police investigators at the scene found a cell phone
belonging to Robert Taylor, who had been the third
person in the car; an examination of the cell phone
led the police to Jihad Clemons. The police questioned
Clemons, who said the defendant was the shooter. Two
days later, police executed a warrant for the arrest of
the defendant on other charges. The defendant lived at
the time with DeAndre Harper and Harper’s younger
brother and sister, Sean Harper and Antonajia Pettway.
In the course of executing the warrant, the police found
two guns under a mattress, which Harper and his
brother slept on; the defendant slept in the same small
bedroom on a different mattress. One of the guns, a
nine millimeter handgun, was determined by a firearms
expert to have fired the bullet recovered from the vic-
tim’s body. Further investigation led to the arrests of
four people who, together with the defendant, were
charged with, inter alia, conspiracy to commit robbery
in the first degree.
All four of the defendant’s coconspirators, Clemons,
Craig Waddell, Hank Palmer, and Mike Lomax, who
had known each other for several years but had only
recently been introduced to the defendant, testified for
the state at the defendant’s trial. The crux of their testi-
mony, as it related to the charge of conspiracy, was that
they and the defendant had entered into an agreement to
rob Robert Taylor, a drug dealer.
Clemons was the first of the conspirators to testify.
He testified that on September 6, 2009, he and Waddell
visited their friend, Braxton Gardner, and decided to
buy some marijuana. To that end, Gardner made a
phone call to Taylor, a drug dealer with whom he was
familiar. Gardner met Taylor a block or two from his
house and completed the purchase. Clemons, Waddell,
and Gardner smoked the marijuana that they had pur-
chased, and then Gardner left to attend his younger
brother’s football game.
Shortly thereafter, Clemons and Waddell decided that
they wanted more marijuana, so they called Gardner
to get Taylor’s telephone number. Clemons then called
Taylor, who met them near Gardner’s house and sold
them more marijuana. While Clemons and Waddell were
smoking the newly purchased marijuana, they walked
to Palmer’s house and discussed robbing Taylor. Lomax
arrived at Palmer’s house, and the four men discussed
their plan to rob Taylor.
Clemons, Waddell, and Lomax left Palmer’s house—
leaving Palmer behind—and drove Lomax’s car, a white
Honda, to Harper’s house to ask Harper if he would
like to be involved in their planned robbery of Taylor.
They found Harper outside on his porch with his cousin,
the defendant. Harper and the defendant approached
Lomax’s vehicle, where they discussed the robbery.
Clemons, Waddell, and Lomax first asked Harper if
he wanted to participate in the robbery, but Harper
declined. They then asked the defendant if he wanted
to participate, and he agreed to do so. The defendant
got into Lomax’s vehicle, and the four men returned to
Palmer’s house.
When they arrived at Palmer’s house, the five men
spent forty-five minutes further discussing their plan
to rob Taylor. They agreed that Clemons would call
Taylor to set up a meeting and that the defendant would
rob him using a nine millimeter handgun, while Waddell
stood nearby. Lomax would drive the car to the place
of the meeting, and Palmer would stay in the car with
Lomax. They agreed that they would steal Taylor’s
drugs, car, and cell phone.
At some point after dark, the men went to meet Tay-
lor. Taylor had told Clemons that he was running late
because he had a flat tire. Clemons parted company
with the others to go home because he was late for his
curfew. Meanwhile, as noted previously in this opinion,
Taylor got a ride to the rendezvous with his friend,
Soler, and Soler’s girlfriend, LaBoy. Soler parked at the
agreed upon location, and a person appeared; Soler
and the person conversed because Soler had agreed to
conclude the sale on Taylor’s behalf. The other person
then shot Soler. Taylor ran from the scene and dropped
his cell phone; other shots were fired at Taylor.
Clemons later called Harper to try to get in touch
with the defendant. Clemons testified that he called
Harper’s phone and the defendant answered. Clemons
‘‘asked him what happened, and he said he killed one
of them and one of them tried to run and I guess he shot
at them and that was it.’’ The defendant also admitted to
Pettway that he shot someone; and Waddell, who had
been in the vicinity of the shooting but was not immedi-
ately with the defendant at the time, told Lomax and
Palmer that the defendant had shot someone.
I
The defendant first claims that the evidence was
insufficient to sustain his conviction of conspiracy to
commit robbery in the first degree. We disagree.
‘‘The two part test this court applies in reviewing
the sufficiency of the evidence supporting a criminal
conviction is well established. 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.’’ (Internal quotation
marks omitted.) State v. Lewis, 303 Conn. 760, 767, 36
A.3d 670 (2012).
‘‘To establish the crime of conspiracy, it must be
shown that an agreement was made to engage in con-
duct constituting a crime, that the conspirators
intended that the conduct be performed and that the
agreement was followed by an overt act in furtherance
of the conspiracy. . . . Conspiracy is a specific intent
crime, with the intent divided into two elements: (a)
the intent to conspire and (b) the intent to commit the
offense which is the object of the conspiracy. . . .
Thus, [p]roof of a conspiracy to commit a specific
offense requires proof that the conspirators intended
to bring about the elements of the conspired offense.’’
(Citation omitted; internal quotation marks omitted.)
State v. Palangio, 115 Conn. App. 355, 362, 973 A.2d
110, cert. denied, 293 Conn. 919, 979 A.2d 492 (2009);
see also General Statutes § 53a-48.
A person is guilty of the crime of robbery in the first
degree, as defined in § 53a-134 (a), when ‘‘in the course
of the commission of the crime of robbery as defined
in section 53a-133 or of immediate flight therefrom, he
or another participant in the crime . . . (2) is armed
with a deadly weapon. . . .’’ General Statutes § 53a-
133 provides: ‘‘A person commits robbery when, in the
course of committing a larceny, he uses or threatens
the immediate use of physical force upon another per-
son for the purpose of: (1) Preventing or overcoming
resistance to the taking of the property or to the reten-
tion thereof immediately after the taking; or (2) compel-
ling the owner of such property or another person to
deliver up the property or to engage in other conduct
which aids in the commission of the larceny.’’
There can be no doubt that the evidence was more
than sufficient to sustain the conviction. Clemons, Wad-
dell, Palmer, and Lomax all testified that they, together
with the defendant, devised the plan to rob Taylor. They
testified about the steps that they took to execute the
plan. The defendant was to be the gunman and Waddell
the backup. In this case, there was direct testimony
about the planning to rob Taylor with the use of a
firearm.
The defendant’s sole attack on the sufficiency of the
evidence appears to be limited to his assertion that by
finding him not guilty of murder, felony murder and
attempted robbery, the jury necessarily rejected the
state’s theory that he was the shooter. If evidence that
he was the shooter was not credited, the defendant
argues, there was no other evidence on which the con-
spiracy conviction could be based. He contends, then,
that the evidence did not support the conviction of
conspiracy. We are not persuaded.
Our Supreme Court in State v. Arroyo, 292 Conn. 558,
973 A.2d 1254 (2009), cert. denied, 559 U.S. 911, 130 S.
Ct. 1296, 175 L. Ed. 2d 1086 (2010), held that verdicts
that are factually, legally, and/or logically inconsistent
are permissible. The court reviewed prior cases and
resolved any prior uncertainty in the law by holding
that courts reviewing claims of inconsistent verdicts
should examine only whether the evidence provided
sufficient support for the conviction, and not whether
the conviction could be squared with verdicts on other
counts. Id., 575–83. The court noted that its holding
was entirely consistent with United States v. Powell,
469 U.S. 57, 105 S. Ct. 471, 83 L. Ed. 2d 461 (1984). See
State v. Arroyo, supra, 584–85.
The defendant argues that his claim is not an inconsis-
tent verdict claim because he is claiming that the jury
resorted to improper speculation and ‘‘necessarily
found facts that are not supported by any evidence in
the record . . . .’’ (Emphasis omitted.) He contends
that the evidence suggests that he participated in the
conspiracy only as the shooter; thus, he argues that, by
finding him guilty of conspiracy to commit robbery but
not guilty of the remaining offenses, the jury must have
based its verdict entirely on speculation. This argument,
however, is simply another way to phrase a claim of
inconsistency, and our Supreme Court in Arroyo specif-
ically rejected the argument that a claim of inconsis-
tency in verdicts may be considered on appeal under
the alternative rubric that ‘‘ ‘the jury’s conclusion was
not reasonably and logically reached’ ’’; State v. Arroyo,
supra, 292 Conn. 580; because of inconsistency. See id.,
580–83. The defendant concedes that there was evi-
dence that he agreed to participate in the crime as
the shooter; we agree. Because factually inconsistent
verdicts are permissible, the claim is not reviewable.
See id., 583.
II
The defendant next claims that the court erred by
denying his request for a jury instruction regarding third
party culpability. The state argues that any error in
refusing to instruct the jury on third party culpability
was harmless in the circumstances of this case. We
agree with the state.
In State v. Arroyo, 284 Conn. 597, 935 A.2d 975 (2007),
our Supreme Court addressed a similar scenario, in
which evidence arguably supporting the defense of third
party culpability had been admitted, but the trial court
had refused to instruct the jury on the defense of third
party culpability. Our Supreme Court noted that the
rationale for providing an instruction was similar to
the rationale for admitting such evidence initially: ‘‘In
determining whether the trial court improperly refused
a request to charge, [w]e . . . review the evidence pre-
sented at trial in the light most favorable to supporting
the . . . proposed charge. . . . A request to charge
which is relevant to the issues of [a] case and which
is an accurate statement of the law must be given. . . .
If, however, the evidence would not reasonably support
a finding of the particular issue, the trial court has a
duty not to submit it to the jury. . . . Thus, a trial court
should instruct the jury in accordance with a party’s
request to charge [only] if the proposed instructions
are reasonably supported by the evidence. . . .
‘‘It is well established that a defendant has a right to
introduce evidence that indicates that someone other
than the defendant committed the crime with which
the defendant has been charged. . . . The defendant
must, however, present evidence that directly connects
a third party to the crime. . . . It is not enough to show
that another had the motive to commit the crime . . .
nor is it enough to raise a bare suspicion that some
other person may have committed the crime of which
the defendant is accused.’’ (Citations omitted; internal
quotation marks omitted.) Id., 607–609.
The defendant filed a request for an instruction
regarding third party culpability.3 During the charging
conference, defense counsel suggested that Harper was
the putative third party culprit and that the following
evidence justified the instruction: Lomax testified that
there was telephonic activity between the coconspira-
tors and Harper before and after the incident; Clemons
testified that he had told the police that the gun used
in the incident was probably provided by Harper; and
the murder weapon was found under Harper’s bed.
The court ruled that the evidence did not warrant a
third party culpability instruction. Relying on authority
including State v. Delossantos, 211 Conn. 258, 559 A.2d
164, cert. denied, 493 U.S. 866, 110 S. Ct. 188, 107 L. Ed.
2d 142 (1989), the court noted that the only significant
evidence implicating Harper was the fact that the gun
used in the crime was found under his mattress, and
that the defendant slept in the same room. The court
discounted the evidence regarding the phone call to
Harper after the shooting because the conspirators used
that phone to try to reach the defendant. Noting that
the defendant’s attorney was free to argue that Harper
was in fact the shooter, the court stated that there was
no direct evidence that Harper was the shooter, in its
view, and it was exercising its discretion not to give
the charge.
The following additional facts are relevant. None of
the four coconspirators testified that Harper had agreed
to participate in the robbery, that he was at Palmer’s
house when the robbery was being planned or that he
was present at the shooting incident. Clemons testified
that he went to Harper’s house and that he thought
‘‘Harper would be up for doing a robbery,’’ but when
Harper was asked to participate, he refused. Lomax
testified that Harper was not ‘‘in the mix’’ of robbery
participants. Waddell testified that the gun used in the
robbery was originally procured by Lomax, but that
‘‘everybody used it as a community gun.’’ Lomax testi-
fied that he had informed police that the gun belonged
to Palmer. The weapon was found under Harper’s mat-
tress in a room that he shared with his younger brother
and the defendant. Clemons testified that during an
interview with police, he told them in the beginning of
the interview that the gun used in the robbery belonged
to Lomax and was kept at Palmer’s house. He further
testified that, although at the end of that interview with
police he had stated that he probably got the gun from
Harper’s house, he had misspoken in so stating. Clem-
ons testified that he went home before the shooting
due to a curfew. Later that night he wanted to locate
the defendant, who had not met with Lomax, Waddell
and Palmer after the planned robbery, but, because he
did not have the defendant’s phone number, he called
Harper’s phone. He stated that the defendant answered
Harper’s telephone. Lomax testified on cross-examina-
tion that he ‘‘might have’’ called Harper’s phone before
and after the robbery, and on redirect examination testi-
fied that he had no recollection of making such calls.
The thrust of the defendant’s argument in support of
the requested charge at trial was that some evidence
pointed to Harper’s being the shooter. The defendant
was found not guilty of all charges other than conspir-
acy, and there was neither evidence nor argument sug-
gesting that the defendant could not have been a
coconspirator if Harper had been the shooter.4 Any
error in refusing to give the charge, then, was harmless,
because the jury’s decision as to the conspiracy count
logically could not have been affected by the giving of
the requested charge. The issue is not constitutional in
nature, and thus it is the defendant’s burden to prove
harmfulness. See State v. Inglis, 151 Conn. App. 283,
296–97, 94 A.3d 1204 (claim regarding denial of third
party culpability instruction not of constitutional magni-
tude), cert. denied, 314 Conn. 920, 100 A.3d 851 (2014),
cert. denied, U.S. , 135 S. Ct. 1559, 191 L. Ed.
2d 647 (2015).
We conclude that the standard for harmlessness was
satisfied because we have ‘‘a fair assurance that the
error did not substantially affect the verdict . . . .’’
(Citation omitted; internal quotation marks omitted.)
State v. Arroyo, supra, 284 Conn. 614. The testimony
of Clemons, Waddell, Palmer, and Lomax supported
the proposition that the defendant played a role in the
conspiracy to commit robbery. Clemons and Lomax
testified that they went to Harper’s house, where the
defendant resided, and Harper declined to participate
in the robbery, but the defendant agreed. Clemons, Wad-
dell, Palmer, and Lomax all testified that they, along
with the defendant, discussed at Palmer’s house their
plan to commit the robbery later that day. There was
strong evidence that the defendant participated in some
capacity in the robbery. Even if the evidence that the
gun used in the robbery was found under Harper’s bed,
in a room he shared with the defendant, and that there
was telephonic communication between some of the
coconspirators and Harper before and after the robbery,
was believed to have linked Harper to the conspiracy,
the defendant would not be exculpated from being a
conspirator, nor would evidence that Harper was the
shooter exculpate the defendant from being found
guilty of conspiracy. Accordingly, any error was
harmless.
III
The defendant last claims that the court erred in
declining to instruct the jury according to the principles
set forth in State v. Pond, 138 Conn. App. 228, 50 A.3d
950 (2012), aff’d, 315 Conn. 451, 108 A.3d 1083 (2015);
see State v. Pond, 315 Conn. 451, 466, 108 A.3d 1083
(2015) (Appellate Court properly determined that trial
court should have instructed jury that ‘‘to find the defen-
dant guilty of conspiracy to commit robbery in the sec-
ond degree in violation of [General Statutes] §§ 53a-135
[a] [2] and 53a-48 [a], it had to find that the defendant
specifically intended that the robbery would involve
the display or threatened use of . . . a deadly weapon
or dangerous instrument’’). We are not persuaded.
‘‘[W]hen the trial court provides counsel with a copy
of the proposed jury instructions, allows a meaningful
opportunity for their review, solicits comments from
counsel regarding changes or modifications and coun-
sel affirmatively accepts the instructions proposed or
given, the defendant may be deemed to have knowledge
of any potential flaws therein and to have waived implic-
itly the constitutional right to challenge the instructions
on direct appeal. Such a determination by the reviewing
court must be based on a close examination of the
record and the particular facts and circumstances of
each case.’’ (Internal quotation marks omitted.) State
v. Kitchens, 299 Conn. 447, 482–83, 10 A.3d 942 (2011).
The defendant’s claim that the court erred by not
giving the jury a Pond instruction was waived. The
defendant was given a meaningful opportunity to review
the instructions, the court solicited comments from
both counsel, and the defendant’s counsel agreed with
the instructions. Almost one week before its final
instructions to the jury, the court provided counsel with
a copy of its proposed instructions to the jury. There-
after, the defendant filed his request to charge wherein
he made no mention of State v. Pond, supra, 138 Conn.
App. 228. During the charging conference the court
noted that it had not made any changes to the instruc-
tions on the charge of attempted robbery and asked
counsel if there were any concerns as to that instruc-
tion; the defendant’s counsel responded, ‘‘No.’’ Regard-
ing the charge of conspiracy to commit robbery in the
first degree, the prosecutor suggested one minor
change, to which defense counsel stated he had no
objection. The court asked if counsel had any objection
to the remainder of its proposed instruction to which
defense counsel responded, ‘‘No, Your Honor.’’ Follow-
ing the court’s instructions to the jury, defense counsel
did not object on the ground that the instructions did
not comply with State v. Pond, supra, 228.
The defendant contends, however, that counsel did
not knowingly and intelligently waive this claim pursu-
ant to Kitchens because our Supreme Court did not
affirm this court’s judgment in State v. Pond, supra, 138
Conn. App. 228, until after the trial of his case. The trial
in this case, however, began nearly one year after this
court’s decision in Pond. An instruction pursuant to
State v. Pond, supra, 228, certainly could have been
requested; the fact that certification to our Supreme
Court had been granted on that case does not affect
the waiver of that claim.5
The judgment is affirmed.
In this opinion the other judges concurred.
1
The defendant was found not guilty of murder in violation of General
Statutes § 53a-54a (a); attempt to commit robbery in the first degree in
violation of General Statutes §§ 53-49 and 53a-134 (a) (2); and felony murder
in violation of General Statutes § 53a-54c.
2
As we will discuss in this opinion, the friend’s name was Robert Taylor.
3
The defendant’s requested instruction was as follows: ‘‘There has been
evidence that a third party, not the defendant, committed the crimes with
which the defendant is charged. This evidence is not intended to prove the
guilt of the third party, but is part of the total evidence for you to consider.
The burden remains on the State to prove each and every element of the
offense beyond a reasonable doubt. It is up to you, and to you alone, to
determine whether any of this evidence, if believed, tends to directly connect
a third party to the crimes with which the defendant is charged. If after a
full and fair consideration and comparison of all the evidence, you have
left in your minds a reasonable doubt indicating that a third party may be
responsible for the crimes the defendant is charged with committing, then
it would be your duty to render a verdict of not guilty as to the accused,
[the defendant].’’
4
The defendant suggested to the jury, in a series of rhetorical questions,
that it was likely that Harper was the shooter, and that the four conspirators
preferred to implicate the defendant rather than Harper, with whom the
conspirators were more familiar.
5
In the alternative, the defendant requests plain error review and review
under our supervisory authority. The defendant cannot prevail under the
plain error doctrine. ‘‘[A] valid waiver . . . thwarts plain error review of a
claim. [The] Plain Error Rule may only be invoked in instances of forfeited-
but-reversible error . . . and cannot be used for the purpose of revoking
an otherwise valid waiver. This is so because if there has been a valid waiver,
there is no error for us to correct.’’ (Internal quotation marks omitted.)
State v. Rosado, 147 Conn. App. 688, 702, 83 A.3d 351, cert. denied, 311
Conn. 928, 86 A.3d 1058 (2014). This is not an extraordinary situation in
which exercise of our supervisory authority is warranted. See State v. Fuller,
158 Conn. App. 378, 392, 119 A.3d 589 (2015) (‘‘[s]upervisory authority is
an extraordinary remedy that should be used sparingly’’ [internal quotation
marks omitted]).