State v. Blaine , 179 Conn. App. 499 ( 2018 )


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    STATE OF CONNECTICUT v. JAYEVON BLAINE
    (AC 36832)
    Sheldon, Prescott and Beach, Js.
    Syllabus
    Convicted of the crime of conspiracy to commit robbery in the first degree,
    the defendant appealed to this court. The defendant’s conviction
    stemmed from his involvement in an alleged conspiracy with four other
    individuals to rob a drug dealer, which resulted in the shooting death
    of the victim. At trial, the four coconspirators each testified that they,
    together with the defendant, had devised a plan to rob the drug dealer
    with a weapon and that the defendant would carry the weapon. In its
    jury charge, the court instructed on the elements of the substantive crime
    of robbery in the first degree, including that one or more participants
    in the robbery be armed with a deadly weapon, and that to find the
    defendant guilty of conspiracy, the jury had to find that he specifically
    intended to commit the substantive crime. On appeal, the defendant
    claimed, inter alia, that the trial court had committed plain error in
    failing to instruct the jury, in accordance with State v. Pond (138 Conn.
    App. 228), regarding the requisite intent necessary to find him guilty of
    conspiracy to commit robbery in the first degree. This court affirmed
    the judgment of the trial court, concluding that the defendant had waived
    his claim and that relief under the plain error doctrine was unavailable.
    Thereafter, the defendant filed a petition for certification with our
    Supreme Court, which granted the petition and remanded the case to
    this court for consideration of his claim of plain error. On remand, held
    that the defendant could not prevail on his claim that the trial court
    committed plain error in failing to instruct the jury that to find him
    guilty of the subject conspiracy, it had to find that he intended and
    specifically agreed that a participant in the robbery would be armed
    with a deadly weapon: because the trial court charged the jury that to
    find the defendant guilty, it had to find that he specifically intended to
    commit the crime of robbery in the first degree and the armed with a
    deadly weapon requirement had been included in the definition of the
    underlying crime given by the trial court, it was at least arguable that
    the instruction logically required the jury to find that the defendant had
    agreed that a participant in the robbery be armed with a deadly weapon
    and, thus, it was fairly debatable whether the court’s instruction as to
    the requisite intent was erroneous; moreover, even if the instruction
    constituted obvious and debatable error, it did not amount to manifest
    injustice, as there was ample evidence that the defendant had agreed
    to the robbery and that one of the participants would use a weapon,
    and, therefore, this court could not conclude that any error in the subject
    instruction affected the fairness and integrity of and public confidence
    in the judicial proceedings so as to necessitate reversal.
    Argued October 4, 2017—officially released February 6, 2018
    Procedural History
    Substitute information charging the defendant with
    the crimes of murder, attempt to commit robbery in the
    first degree, felony murder and conspiracy to commit
    robbery in the first degree, brought to the Superior
    Court in the judicial district of Fairfield and tried to
    the jury before Kahn, J.; verdict and judgment of guilty
    of conspiracy to commit robbery in the first degree,
    from which the defendant appealed to this court, which
    affirmed the judgment; thereafter, the defendant filed
    a petition for certification to appeal with our Supreme
    Court, which granted the petition and remanded the
    case to this court for consideration of the defendant’s
    claim of plain error. Affirmed.
    Katherine    C.    Essington,    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. This case returns to us on remand from
    our Supreme Court with direction to consider the claim
    of plain error raised by the defendant, Jayevon Blaine,
    in light of State v. McClain, 
    324 Conn. 802
    , 
    155 A.3d 209
    (2017).1 The defendant previously appealed from
    the judgment of conviction of conspiracy to commit
    robbery in the first degree in violation of General Stat-
    utes §§ 53a-48 and 53a-134 (a) (2).2 We held in our prior
    opinion that the waiver of a claim of instructional error
    pursuant to State v. Kitchens, 
    299 Conn. 447
    , 
    10 A.3d 942
    (2011), precluded review of the claim of plain error.
    State v. Blaine, 
    168 Conn. App. 505
    , 517–19 and n.5,
    
    147 A.3d 1044
    (2016), remanded in part, 
    325 Conn. 918
    ,
    
    163 A.3d 618
    (2017). In State v. 
    McClain, supra
    , 815,
    our Supreme Court held that a Kitchens waiver did not
    preclude a claim of plain error. We now consider the
    defendant’s claim that the trial court committed plain
    error by incorrectly instructing the jury on the requisite
    intent to find him guilty of conspiracy to commit rob-
    bery in the first degree. We conclude that the record
    does not support the claim that the pertinent instruction
    constituted plain error. Accordingly, we affirm the judg-
    ment of the trial court.
    The following facts are relevant to this appeal.3 After
    the killing of the victim, Kevin Soler, on Bretton Street
    in Bridgeport, the defendant was arrested and charged
    with murder in violation of General Statutes § 53a-54a
    (a), attempt to commit robbery in the first degree in
    violation of General Statutes §§ 53a-49 and 53a-134 (a)
    (2), felony murder in violation of General Statutes §53a-
    54c, and conspiracy to commit robbery in the first
    degree in violation of §§ 53a-48 and 53a-134 (a) (2). As
    we stated in our prior opinion: ‘‘[F]our people . . .
    together with the defendant, were charged with, inter
    alia, conspiracy to commit robbery in the first degree.
    ‘‘All four of the defendant’s coconspirators, [Jihad]
    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 testimony, 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.4
    ‘‘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 Gard-
    ner 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’ car, a white
    Honda, to [DeAndre] 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’ 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’ 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
    Taylor. 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 . . . Taylor got a ride to the rendez-
    vous with his friend, Soler, and Soler’s girlfriend, [Pris-
    cilla] 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 Tay-
    lor’s behalf. The other person then shot Soler.’’ (Foot-
    note added.) State v. 
    Blaine, supra
    , 
    168 Conn. App. 508
    –10. Soler was later found dead by the Bridgeport
    police. 
    Id., 507. The
    jury found the defendant guilty of conspiracy to
    commit robbery in the first degree but not guilty of the
    other charges. On appeal to this court, the defendant
    claimed that (1) there was insufficient evidence to sus-
    tain his conviction of conspiracy to commit robbery in
    the first degree,5 (2) the court erred in denying his
    request for a jury instruction on third-party culpability,
    and (3) the court erred in failing 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. 
    Blaine, supra
    ,
    
    168 Conn. App. 507
    , 517. In affirming the trial court’s
    judgment, we concluded that there was sufficient evi-
    dence to sustain the defendant’s conviction and that
    any error resulting from the court’s failure to provide
    a third-party culpability instruction was harmless. 
    Id., 507, 517.
    As to the defendant’s third claim, that there
    was plain error under Pond, we concluded that plain
    error relief was unavailable. 
    Id., 518. The
    defendant then sought and was granted certifica-
    tion to appeal by our Supreme Court on his claim of
    plain error, and the case was remanded to this court
    with direction to consider the defendant’s claim in light
    of McClain. See State v. Blaine, 
    325 Conn. 918
    , 
    163 A.3d 618
    (2017). The only issue before us on remand
    is whether the trial court’s instruction to the jury regard-
    ing the requisite intent for conspiracy to commit rob-
    bery in the first degree constituted plain error.
    Two elements must be satisfied in order to support
    a conclusion that a judgment must be reversed on the
    basis of plain error. ‘‘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 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.’’ (Internal quo-
    tation marks omitted.) State v. 
    McClain, supra
    , 
    324 Conn. 812
    .
    ‘‘[T]he 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 integ-
    rity of and public confidence in the judicial proceedings.
    . . . In 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 deter-
    mine whether reversal under the 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.’’ (Citation omitted;
    internal quotation marks omitted.) 
    Id. An appellant
    ‘‘cannot prevail . . . unless he demon-
    strates 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.) Id; see also State v.
    Coward, 
    292 Conn. 296
    , 307, 
    972 A.2d 691
    (2009). ‘‘It is
    axiomatic that, [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. . . . Put another
    way, plain error review is reserved for only the most
    egregious errors. When an error of such a magnitude
    exists, it necessitates reversal.’’ (Citation omitted; inter-
    nal quotation marks omitted.) State v. 
    McClain, supra
    ,
    
    324 Conn. 813
    –14.
    ‘‘Our standard of review for claims of instructional
    impropriety is well established. The principal function
    of a jury charge is to assist the jury in applying the
    law correctly to the facts which they might find to be
    established . . . . When reviewing [a] challenged jury
    instruction . . . we must adhere to the well settled rule
    that a charge to the jury is to be considered in its entirety
    . . . and judged by its total effect rather than by its
    individual component parts. . . . [T]he test of a court’s
    charge is . . . whether it fairly presents the case to
    the jury in such a way that injustice is not done to either
    party . . . . In this inquiry we focus on the substance
    of the charge rather than the form of what was said
    not only in light of the entire charge, but also within the
    context of the entire trial.’’ (Internal quotation marks
    omitted.) State v. Lawrence, 
    282 Conn. 141
    , 179, 
    920 A.2d 236
    (2007).
    The defendant claims that the trial court failed to
    instruct the jury that in order to find him guilty of the
    conspiracy with which he was charged, it had to find
    that he had intended that one or more participants in
    the robbery be armed with a deadly weapon and that
    the failure so to instruct constituted plain error. In State
    v. 
    Pond, supra
    , 
    138 Conn. App. 233
    –34, we held that
    to be convicted of conspiracy, a defendant must have
    specifically intended that every element of the planned
    offense be accomplished, including elements of the
    underlying crime that do not require specific intent.
    We turn to an analysis of the court’s instructions to
    the jury in the present case. Two portions are especially
    pertinent. The court addressed the elements of the sub-
    stantive crime of robbery in the first degree in violation
    of § 53a-134 (a) (2). The court instructed that robbery
    was a larceny committed by the use or threatened use
    of force. Larceny, in turn, required an intent to deprive
    another of property. The court then charged that the
    ‘‘third element’’ was that in ‘‘the course of the commis-
    sion of the robbery or immediate flight from the crime
    the defendant or another participant in the crime was
    armed with a deadly weapon.’’
    Later in the charge the court instructed on the ele-
    ments of the crime of conspiracy to commit robbery
    in the first degree: ‘‘One, there was an agreement
    between the defendant and one or more persons to
    engage in conduct constituting the crime of robbery in
    the first degree; two, there was an overt act in further-
    ance of the agreement by any one of the persons; and,
    three, the defendant specifically intended to commit
    the crime of robbery in the first degree.’’ (Emphasis
    added.)
    The court defined ‘‘agreement’’ and ‘‘overt act,’’ and
    then instructed: ‘‘Element three, criminal intent. The
    third element is that the defendant had the intent to
    commit robbery in the first degree. The defendant must
    have had specific intent. The defendant may not be
    found guilty unless the state has proved beyond a rea-
    sonable doubt that he specifically intended to commit
    robbery in the first degree when he entered into the
    agreement.’’
    After defining specific intent, the court summarized
    its charge regarding conspiracy: ‘‘[One] the state must
    prove beyond a reasonable doubt that the defendant
    had an agreement with one or more persons to commit
    robbery in the first degree. Two, at least one of the
    coconspirators did an overt act in furtherance of the
    conspiracy and, three, the defendant specifically
    intended to commit robbery in the first degree.’’
    The defendant claims that because the court did not
    expressly and specifically instruct the jury that, in order
    to find him guilty, it had to find that he specifically
    agreed that a participant in the crime would be armed
    with a deadly weapon, the court committed plain error.
    He relies primarily on State v. 
    Pond, supra
    138 Conn.
    App. 228.6
    In Pond, the defendant was charged with attempt to
    commit robbery in the second degree and conspiracy
    to commit robbery in the second degree. 
    Id., 232. The
    substantive crime of robbery in the second degree, as
    charged, included as an element the display or threat-
    ened use of a weapon. This court observed that the
    instructions in Pond were ‘‘to the effect that the specific
    intent required for the conspiracy charge was that as
    for a charge of larceny.’’ 
    Id., 237. The
    trial court
    instructed the jury as to the intent element of the con-
    spiracy charge as follows: ‘‘The third element is that
    the defendant had the intent to commit robbery in the
    second degree. The intent for that crime is that at the
    time of the agreement he intended to commit larceny.
    The defendant may not be found guilty unless the state
    has proved beyond a reasonable doubt that he specifi-
    cally intended to commit a larceny when he entered into
    the agreement.’’ (Internal quotation marks omitted.) 
    Id. The court
    then concluded: ‘‘In summary, the state must
    prove beyond a reasonable doubt that the defendant
    had an agreement with one or more other persons to
    commit robbery in the second degree, at least one of
    the coconspirators did an overt act in furtherance of
    the conspiracy, and the defendant specifically intended
    to deprive the owner of his property.’’ (Internal quota-
    tion marks omitted.) 
    Id., 237–38. This
    court afforded review pursuant to State v. Gold-
    ing, 
    213 Conn. 233
    , 
    567 A.2d 823
    (1989), and, relying
    primarily on State v. Padua, 
    273 Conn. 138
    , 
    869 A.2d 192
    (2005), reversed the judgment, because ‘‘[t]he court
    did not tell the jury that the state was required to prove
    that the defendant specifically intended that, in the
    course of the robbery, what was represented to be a
    deadly weapon or dangerous instrument would be used
    or displayed. Contrary to the state’s argument, there is
    nothing in the rest of the language of the jury instruc-
    tions that would render this omission in the instruction
    harmless.’’ State v. 
    Pond, supra
    , 
    138 Conn. App. 238
    –39.
    There are similarities and distinctions between Pond
    and the present case. It is now well established that a
    conviction of conspiracy to commit a crime requires
    proof of specific intent to commit all elements of the
    underlying crime, even if only general intent or, conceiv-
    ably, no intent at all is required as to one or more
    elements necessary for conviction of the underlying
    substantive crime. See State v. 
    Padua, supra
    , 
    273 Conn. 138
    ; see also State v. Pond, 
    315 Conn. 451
    , 
    108 A.3d 1083
    (2015). In Pond, however, the trial court not only
    failed to instruct the jury that specific intent was
    required as to the display or threatened use of a weapon,
    it also expressly stated that the specific intent required
    to convict was that the defendant intended, at the time
    of agreement, to commit larceny.7 Additionally, because
    the defendant in Pond prevailed pursuant to Golding,
    application of the plain error doctrine was not nec-
    essary.
    In the present case, the court did not expressly limit
    the requirement of specific intent to fewer than all the
    elements of the substantive crime. The court, instead,
    charged that in order to find the defendant guilty, the
    jury had to find that he specifically intended to commit
    the crime of robbery in the first degree; the court pre-
    viously had included in the definition of that substantive
    crime the element that one or more participants be
    armed with a deadly weapon. Because the ‘‘armed with
    a deadly weapon’’ element had been included in the
    definition of the underlying crime and the conspiracy
    charge required for conviction a finding that the defen-
    dant intended to commit the substantive crime, it is at
    least arguable that the instruction logically required
    the jury to find that the defendant had agreed that a
    participant would be armed with a deadly weapon. If
    it is fairly debatable whether an action of the trial court
    is erroneous, the error, if any, is not plain error, and
    the judgment should be affirmed. See State v. 
    McClain, supra
    , 
    324 Conn. 812
    .
    Even if the instruction did constitute obvious and
    undebatable error, however, the record does not satisfy
    the second prong required for reversal pursuant to the
    plain error doctrine, because the record does not show
    manifest injustice. See State v. 
    Coward, supra
    , 
    292 Conn. 307
    (‘‘under the second prong of the [plain error
    doctrine] we must determine whether the consequences
    of the error are so grievous as to be fundamentally
    unfair or manifestly unjust’’). In State v. 
    Padua, supra
    ,
    
    273 Conn. 164
    –65, for example, our Supreme Court con-
    sidered a case in which conspiracy to sell marijuana
    within 1500 feet of a public housing project was alleged,
    and the trial court had not instructed that, in order to
    find the defendant guilty, the jury had to find that he
    agreed to commit the crime within 1500 feet of a public
    housing project.8 Our Supreme Court held that, although
    the instruction was improper, the error was harmless
    in light of overwhelming evidence regarding intent to
    sell marijuana within 1500 feet of a public housing
    project.
    In the present case, each of the four coconspirators
    testified that the plan was to rob Taylor with a weapon
    and that the defendant was to wield the weapon. Every
    witness who testified that the agreement existed also
    testified that use of a weapon was contemplated.
    Although the defendant denied involvement altogether,
    there was ample evidence that he had agreed to the
    robbery and that someone would use a weapon. A simi-
    lar situation in Padua led to a conclusion of harmless
    error; here, we cannot find that a less egregious error,
    if indeed there was an error, amounted to manifest
    injustice. See also State v. 
    Lawrence, supra
    , 
    282 Conn. 183
    (possible defect in presumption of innocence
    instruction did not affect fairness of trial when instruc-
    tion viewed in entirety); State v. LaBrec, 
    270 Conn. 548
    ,
    560, 
    854 A.2d 1
    (2004) (instruction that original jurors
    should review their previous deliberations with substi-
    tuted alternate juror not extraordinary error).
    Under these circumstances, we cannot conclude that
    any error in the court’s instructions to the jury affected
    ‘‘the fairness and integrity of and public confidence
    in the judicial proceedings.’’ (Internal quotation marks
    omitted.) State v. 
    McClain, supra
    , 
    324 Conn. 812
    .
    Accordingly, we decline to reverse the trial court’s judg-
    ment under the plain error doctrine.
    The judgment is affirmed.
    In this opinion the other judges concurred.
    1
    See State v. Blaine, 
    325 Conn. 918
    , 
    163 A.3d 618
    (2017).
    2
    General Statutes § 53a-48 provides in relevant part: ‘‘(a) A person is
    guilty of conspiracy when, with intent that conduct constituting a crime be
    performed, he agrees with one or more persons to engage in or cause the
    performance of such conduct, and any one of them commits an overt act
    in pursuance of such conspiracy. . . .’’
    General Statutes 53a-134 (a) provides in relevant part: ‘‘A person is guilty
    of robbery in the first degree 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 . . . .’’
    3
    See generally State v. 
    Blaine, supra
    , 
    168 Conn. App. 506
    –507.
    4
    Waddell was the only witness who gave a statement prior to the trial
    that he had seen the defendant shoot the victim. He testified during the
    trial, however, that he never actually saw the shooting, but that he stood
    at some distance from the defendant and only heard gunshots. The jury was
    allowed to hear testimony that Waddell had changed his statement.
    5
    The defendant sought to bolster his claim by stressing that the jury found
    him not guilty of the substantive crimes charged, yet guilty of conspiracy,
    where the evidence regarding the agreement also suggested that the defen-
    dant was the shooter. If the jury did not believe the testimony that he was
    the shooter, he argued, then it could not believe that he participated in the
    agreement. We rejected that contention in State v. 
    Blaine, supra
    , 168 Conn.
    App. 512–13. The jury’s verdict perhaps can be rationalized, though it need
    not be, by reference to the fact that no coconspirator testified that he saw
    the defendant shoot the victim. See footnote 4 of this opinion.
    6
    Because the trial in the present case occurred after the Appellate Court’s
    decision in Pond but before the Supreme Court’s affirmance, we primarily
    consider the Appellate Court’s opinion for the purpose of the plain error
    analysis.
    7
    Thus, the jury logically could have concluded that the only specific intent
    required for conviction was the intent to commit a larceny.
    8
    The correlation between the conspiracy charge and the underlying crime
    in Padua corresponded to the structures of this case and Pond, in that proof
    of intent to sell marijuana within 1500 feet of a public housing project was
    not required for conviction of the underlying offense.
    

Document Info

Docket Number: AC36832

Citation Numbers: 180 A.3d 622, 179 Conn. App. 499

Filed Date: 2/6/2018

Precedential Status: Precedential

Modified Date: 1/12/2023